Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Tuesday, June 30, 2009

Sotomayor -- Being reversed makes her a judicial originalist

So sayeth Bobby Gibbs in a lame, feeble, half @$$ed attempt to cover for her when it comes to the court she's about to join. After reading the decision handed down by SCOTUS we're pretty sure that her soon-to-be colleagues know they will have a lightweight activist on the court:

The White House came to the defense of President Obama’s pick to be the newest Supreme Court justice after Judge Sonia Sotomayor’s ruling in a racially charged case was reversed by the Supreme Court.

White House press secretary Robert Gibbs all but accused the current court of “judicial activism,” a buzz term used by conservatives in recent years, in overturning what the White House saw as Sotomayor’s upholding of precedent. …

But Gibbs said that the case “denotes that [Sotomayor] is a follower of precedent,” and the arguments over judicial activism “seem to be at the very least upside-down in this case.”

Gibbs said the case proves “she doesn’t legislate from the bench.”

She doesn't? Really? Because in Justice Ginsburg's footnotes, she slaps the snot out of Sotomayor and the 2nd Circuit Court. In footnote 10 of her opinion, she noted the court agrees that
the 2nd Circuit Court shouldn't have ruled for summary judgment in the first place, and that the should have remanded it back to the loser court. SCOTUS even stated, repeatedly, that had this been a case before a jury, it would've won, hands down.

So what does this mean for Sotomayor? Nothing, really. She's still going to be confirmed regardless of the stink that's made by Republicans. (That is, if there is one raised at all.) What this proves is that Sotomayor isn't the intellectual heavyweight Barry and his minions have tried to paint for the public. She really isn't the brightest Crayola in the crayon box. Everything about her is based on the fact that she's A) A woman, and B) A Hispanic. That's all Barry was looking for. As Captain Ed notes the White House's spin on her is rather hypocritical. Stuart Taylor provides a rather embarrassing reminder of just how much confidence Barry and Company had in Sotomayor:

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit — regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly — as did the Obama Justice Department, in a friend-of-the-court brief — that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city’s claimed motive — fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions — was a pretext. The jury’s job would have been to consider evidence that the city’s main motive had been to placate black political leaders who were part of Mayor John DeStefano’s political base.

So, Barry's own Justice Department slapped down her opinion, but the White House is furiously trying to spin this away as if there's nothing to see here. The bad news is that while the emperor has no clothes in the White House, his prized gem of a judge is just as naked.

Publius II


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