Sotomayor proving resilient to GOP’s efforts at criticism / LJWorld.com

Archive for Monday, July 6, 2009

By Julie Hirschfeld Davis - Associated Press Writer

July 6, 2009

Washington — A week before her Senate hearings, Republicans are floundering in their efforts to trip up Supreme Court nominee Sonia Sotomayor, unable to find an effective message about why she’s not fit to serve.

Blame the tricky politics of opposing the woman who would be the first Hispanic justice, especially for a party struggling to broaden its base and whose chief spokesman on Sotomayor has a troubled history of racism allegations.

Add to that the mathematical impossibility of Republicans’ rejecting President Barack Obama’s first high court nominee, and it’s a recipe for a weak-kneed response.

Conservative advocates have noticed, and they’re not happy.

“Too many Republicans and conservatives planned to lose instead of planning to win” the debate over Sotomayor, said Tom Fitton of Judicial Watch. His group has mounted strong opposition to the federal appeals court judge.

About half the Senate’s Republicans are willing to raise serious questions about Sotomayor and there’s “a sizable minority who — partly because she’s Hispanic — just want this to go away,” said Curt Levey of the Committee for Justice.

Conservative groups have sought to convince Senate Republicans that they can benefit politically by strongly opposing Sotomayor. But many of their leaders complain the message isn’t getting through.

There are good reasons for Republicans to be holding back, wondering what their best approach is to opposing a nominee who’s broadly acknowledged to be qualified and whose past rulings make it difficult to pigeonhole her as a liberal crusader.

The GOP has just 40 votes in the Senate — well short of the majority they would need to defeat Sotomayor or to sustain a drawn-out effort to block a final vote to confirm her.

Even if they could stall Sotomayor’s nomination, though, it’s evident that many Republicans don’t think it’s politically prudent to take on a Hispanic woman, given the GOP’s low standing in the polls and its efforts to appeal to women and minorities. Those groups traditionally have shunned the party.

The issue of race and ethnicity has proven a toxic one for the key Republican carrying the party message on Sotomayor: Alabama Sen. Jeff Sessions, the senior GOP member of the Senate Judiciary Committee, which begins hearings on Sotomayor on July 13.

Sessions’ own nomination for a federal judgeship in 1986 was scuttled by allegations that he made racist comments and targeted black civil rights leaders as a federal prosecutor in Alabama.

He denied those charges. But he did acknowledge making what he called some off-color “jokes,” such as calling civil rights groups such as the National Association for the Advancement of Colored People “un-American.”

Sessions has spoken in similar terms recently about a Puerto Rican legal advocacy group on whose board Sotomayor sat from 1980 until 1992.

“This is a group that has taken some very shocking positions with respect to terrorism,” Sessions said of LatinoJustice PRLDEF, citing its defense in 1990 of Puerto Rican nationalists who 36 years earlier had wounded five lawmakers during an attack on the House while it was in session.

Sessions said Thursday the group’s stances on issues from capital punishment to race were “extreme.” His staff raised concern about its ties with the community organizing group ACORN, which Republicans routinely describe as a radical organization.

Democrats said the GOP was grasping at straws.

It’s not that Republicans aren’t criticizing Sotomayor. Early on, they went out of their way to treat her gently, trying to distinguish themselves from party firebrands such as radio host Rush Limbaugh and former House Speaker Newt Gingrich who called her a racist.

In recent days, GOP senators have faulted her for her stance on gun rights, her ruling against white firefighters who alleged reverse discrimination, and her participation in the Puerto Rican legal advocacy group. They’ve raised questions about her ability to be “color-blind.”

Discussion

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6 July 2009
at 1:53 a.m.

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Marion (Marion Lynn) says…

Seven cases before the Supreme Court and six overturned.

http://www.freerepublic.com/focus/f-n…

From the citation:

“Affirmative Action: Ricci v. DeStefano 530 F.3d 87 (2008) - pending (now reversed 5-4) Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting the City of New Haven's decision to throw out the results of an exam to determine promotions within the city's fire department. Only one Hispanic and no African-American firefighters qualified for promotion based on the exam; the City subsequently decided not to certify the results and issued no promotions. In June 2008, Sotomayor was part of a 7-6 majority to deny a rehearing of the case by the full court. The Supreme Court agreed to review the case and heard oral arguments in April 2009.

• Affirmed on Health Insurance: Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) - affirmed 5-4 In 2005, Sotomayor ruled against a health insurance company that sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of the federal employee had won $3.2 million in a separate lawsuit from those whom she claimed caused her husband's injuries. The health insurance company sued for reimbursement of the benefits paid to the federal employee, saying that a provision in the federal insurance plan requires paid benefits to be reimbursed when the beneficiary is compensated for an injury by a third party.

• Wrong on the environment: Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) - reversed 6-3 Sotomayor, writing for a three-judge panel, ruled that the EPA may not engage in a cost-benefit analysis in implementing a rule that the “best technology available” must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the “best technology” regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the “best technology” rule was too narrow.

• Wrong on taxes: Knight vs. Commissioner, 467 F.3d 149 (2006) - upheld but unanimously rejected the reasoning she adopted In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductible. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach “flies in the face of the statutory language.”

cont'd:
6 July 2009
at 1:53 a.m.

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Marion (Marion Lynn) says…

cont'd:

” Wrong on finance: Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) - reversed 8-0 In a 2005 ruling, Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling, saying that the federal interest in overseeing securities market cases prevails and that doing otherwise could give rise to “wasteful, duplicative litigation.”

• Wrong on Civil Rights: Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) - reversed 5-4 Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as “Bivens,” which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government.

• Wrong on Intellectual Property: Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) - reversed 7-2 As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databases and archives such as “Lexis/Nexis” without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling).”
6 July 2009
at 9:56 a.m.

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bankboy119 (Anonymous) says…

Very good points Marion.

“There are good reasons for Republicans to be holding back, wondering what their best approach is to opposing a nominee who’s broadly acknowledged to be qualified and whose past rulings make it difficult to pigeonhole her as a liberal crusader.”

With all of her court cases being overturned I believe it's fairly easy to say she's trying to legislate from the bench….which she has admitted to.
6 July 2009
at 10:15 a.m.

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Esq2eB (Anonymous) says…

I for one am excited to have a racist on the Supreme Court, it will be a first among firsts for this administration.
6 July 2009
at 10:31 a.m.

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MyName (Anonymous) says…

Wall of text crits you for 55928 (49128 overkill).

You die.
6 July 2009
at 11:03 a.m.

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KansasVoter (Anonymous) says…

Sotomayor is so conservative that the republicans don't see any reason to criticize her.
6 July 2009
at 11:24 a.m.

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feeble (Anonymous) says…

Legislating from the bench would imply that the appellate court was overturning a decision from the lower court. This is not the case in Sotomayors rulings. Rather, she upheld lower court rulings which were reversed upon appeal to scotus. This is as far away from judicial advocacy as one can get.

What Marion conveniently left out is that Sotomayor's record of being overturned by SCOTUS is not unique, but rather the norm. In fact Justice Alito had an even worse record of being over turned before he ascended to the Court, and was rebuked by sitting Justices.

Data compiled by SCOTUSblog (http://www.scotusblog.com/wp/) since 2004 show that the Supreme Court has reversed more than 67 percent of the federal appeals court cases it considered each year, except 2007, when it reversed federal appeals court cases 61 percent of the time.

But really, it doesn't matter because the rate of reversal of cases taken up doesn't say much because of sampling bias. SCOTUS only take 1% of the cases they are asked to take, and SCOTUS is much more likely to take cases a majority thinks are wrong.