McIntosh Repeat Errors About Sotomayor's Judicial History

David McIntosh has created of number of errors. I made some coffee and now to get to work.

In today’s Wall Street Journal McIntosh writes “Vote No On Sotomayor.” He attempts to assert facts that support his case but his claims are wrong.Unlike Mr. McIntosh, I am not a lawyer but I can read. To be fair these errors have been made everywhere.

As I said I am not a lawyer so if this wrong or boring I apologize (I hope I am not wrong).

Mr. McIntosh writes:

“Judge Sotomayor is almost certainly a vote in favor of restricting Second Amendment protections and property rights, upholding racial preferences, and providing unlimited abortion on demand.”

From this premise he cites rulings she has made while on the Court of Appeals.

According to McIntosh, as Justice, Sotomayor will certainly “vote in favor of restricting Second Amendment protections.” His first error is the reading of a Second Circuit decision on Maloney v. Cuomo (2009). Here McIntosh quotes the Second Circuit opinion, “the Second Amendment applies only to limitations the federal government seeks to impose on this right.” In Maloney v. Cuomo the court considered a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms.

The problem with McIntosh’s complaint is that it does not support the idea that legal precedent and rule of law. His argument is that in ruling on Maloney, Sotomayor disregarded the Supreme Courts decision in District of Columbia v. Heller. Unfortunately a close reading of Heller shows that the ruling is not explicitly applicable to Maloney. Justice Scalia’s majority opinion in Heller states,

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ 478 F. 3d, at 400, would fail constitutional muster.”

The first problem I find is that a chukka stick is not a handgun therefore not the weapon “most preferred” “to keep and use for protection”. It is also not in the “class or arms” considered in Heller. As written in the Maloney decision Heller “did not present the question of whether the Second Amendment applies to the states.” Knowing this and the importance of rule of law and precedent there seems no way the Second Circuit could have ruled the way McIntosh would have preferred without being the horrible “judicial activists.” Since Heller was not applicable the Second Circuit applied Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms.

McIntosh commits the same error as he cites Ricci v. DeStefano. McIntosh writes “a Second Circuit panel of judges, including Judge Sotomayor, upheld the city’s decision to disregard the results of a promotion examination because too few racial minorities passed.” But in reality, if McIntosh had read the decision he may have avoided his error. The Second Circuit upheld the case because they found:

“The remedy chosen here was decidedly less “race conscious” than the remedies in Kirkland and Bushey, because New Haven did not race-norm the scores, they simply decided to start over, to develop some new assessment mechanism with less disparate impact. Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of any evidence of discriminatory animus towards plaintiffs-under the reasoning of [Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir. 1999)], “nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation.... [T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

Again I’m not a lawyer but I can read. I agree with McIntosh that this sucks for the firefighters that did well on the first test but that is not the standard by which the law functions.

There are other problems with McIntosh’s latest attempt but I won’t don’t want to bore you with why Puerto Rican Legal Defense and Education Fund aren't crazy abortionists.

Note: There has been a correction from the original posting. I attributed the essay Vote No On Sotomayor to Karl Rove. The essay was written by David McIntosh. Apologies.

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Follow up on Should Supreme Court nominees be questioned by the Senate?

Here is a link to Stephen Carter's essay advocating the end of judicial nominees appearing before the Senate.

Here is my previous post:
Should Supreme Court nominees be questioned by the Senate? Sphere: Related Content

“OKLAHOMA WHERE THE HYPOCRISY COMES SWEEPING DOWN THE PLAINS.”

David Boies’s essay in Wall Street Journal today lead my mind to think about how the courts are going to approach arguments on gay marriage. It seems appropriate to question this through what I heard all week during the hearing on the nomination of Sonia Sotomayor.

After the grandstanding this past week about the role of judges applying the law not their personal bias I hope judges in courts soon to hear gay marriage cases follow this senatorial dictum.

I agree with the intent of Judge Sotomayor’s statements that our experiences are integral to how we interpret and understand. Experience by definition is “the fact or state of having been affected by or gained knowledge through direct observation or participation.” It is a filter through which we process all stimuli. No one can escape this pure human function.

Some Senators disagree.

Unfortunately, after purporting that judges leave aside bias, prejudice and personal feelings some senators are hoping to overturn gay marriage rulings in Iowa, Vermont, Massachusetts, Connecticut, Maine, New Hampshire and Vermont. They also want to stop California’s Prop 8 from being reversed. Ultimately as U.S. District Chief Judge Vaughn Walker predicted, "I am reasonably sure that, given the personalities in this courtroom, this case is only touching down in this court and it will have a life after this court," Walker said. "What happens here is in many ways a prelude to what happens later." Supreme Court here we come.

It certainly seems that those hoping to protect “traditional marriage” are dependent upon relying on bias, prejudice and personal feelings of Christian judges. Religion is probably the most fundamental form of bias, prejudice or personal feelings. Sen. Charles Grassley (R-IA) wants “to be absolutely certain that [judges] will faithfully interpret the law and the Constitution without bias or prejudice.” Is it hypocritical to demand fairness in the abstract but hope for bias in the specific of gay marriage? Senator Tom Coburn (R-OK) pronounced, I don’t think he was being ironic, “that's why Lady Justice is always depicted blind and why Aristotle defined law as ‘reason free from passion.’”

Other countries are better at separating religiosity from deciding of legal rights. David Boies writes today in the Wall Street Journal,

"Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love."

In the hearings for John Roberts nomination to the high court Sen Coburn said, “"If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation," Coburn said, according to the Associated Press. "I am looking for somebody who is not going to make that mistake again in any other area of life." Let sing a song for Senator Coburn, “OKLAHOMA WHERE THE HYPOCRISY COMES SWEEPING DOWN THE PLAINS.”

Boies also writes,

"There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law."

Why can’t we agree that religious dogma has no place in our courts and the discussion of our rights. And neither does hypocrisy.

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Bob Bennett makes up problems with judge in order to vote NO.

Senator Bob Bennett (R-Utah) announces he will vote no on Judge Sotomayor nomination to the Supreme Court. His reasons are generally crap but his motivation is that he needs to raise money as he is running for re-election in 2010.
I understand Sen. Bennett's concern on the second amendment. But his other concerns are clearly wrong.

Sen. Bennett:
"The rate at which Judge Sotomayor's cases have been overturned by the Supreme Court is cause for great concern. Eighty percent of the cases she's participated in that have been heard or considered by the Supreme Court have been reversed or vacated, which further indicates to me a tendency to legislate from the bench."

This is absolutely wrong. According to FactCheck.org, "But only five of her decisions have been reviewed by the justices. Using five as a denominator, the rate comes out to 60 percent." Only three out of five had been overturned. Less than the average. In contrast Justice Alito has been oberturned by the Supreme Court 100% (2 out of 2).

Sen. Bennett:
"Finally, Judge Sotomayor has stated that she believes American judges should consider foreign law when interpreting the Constitution. The Constitution is an inspired document and I strongly believe the Supreme Court should strictly interpret American law based on the Constitution rather than the laws of other countries.

Here is Sotomayor answering this question with Sen Coburn.

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Should Supreme Court nominees be questioned by the Senate?

Stephen Carter of Yale Law School thinks the Senate should stop. What do you think?

Listen to the NPR On Point interview with Professor Carter. Sphere: Related Content

Mr. McCarthy it is absolutely wrong to call people liars while you are lying.

I want to only address a few of Andrew C. McCarthy's mistakes in his piece in the National Review Online today. Mr. McCarthy it is absolutely wrong to call people liars while you are lying.

Mr. McCarthy writes:

"We must heartily agree with Justice Sandra Day O’Connor’s observation that a 'wise old man and wise old woman will reach the same conclusion in deciding cases' — even if we’ve spent our professional lives denying that simple truth."

I am not a lawyer but I can read and then apply that knowledge to the world. Justice O'Connor's statement on its face is nice but does it square will reality? Unless the justices of the Supreme Court are not wise it seems that nine wise judges don't always arrive at the same conclusion. Judge Sotomayor's now infamous "wise latina" speech while sometimes not very artfully written contains some very true ideas. In the speech, addressing Justice O'Connor's statement Judge Sotomayor asserts that there "can never be a universal definition of wise". I would agree that there is no absolute way to define "wise." In general two people can arrive at differing opinions or conclusions and both be wise and correct. Yes.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." One of only a few statements that made the world stop eight years after it was spoken. Mr. McCarthy writes,

"The notion that a “wise Latina” or a wise fill-in-the-racial/ethnic/gender group will make better decisions than judges drawn from other categories of Americans — especially white men — is repulsive."

What is repulsive is that the ops research people discard context or they don't understand context. The title of the judge's speech is "A Latina Judge's Voice". The speech took place at a conference titled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation." The context of this area of the speech is in the area discrimination. Prior to this infamous line the Judge cites research that finds female judges are more likely to "uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases" or "grant a protective order against a father's visitation rights." In this context I believe the "wise latina" is fine.

Mr. McCarthy repeats the ridiculous claim that Judge Sotomayor on the topic of abortion supports the argument "that the denial of such funding to low-income women is tantamount to slavery." This is not true. No one has made that claim. The Associated Press researched this claim and found:

"The Puerto Rican Legal Defense and Education Fund board, along with three other organizations, filed an amicus brief with the Supreme Court, arguing that banning taxpayer-funded abortions discriminated against poor minority women. At the time, Sotomayor served on the group's board of directors.

There is no connection to slavery in that brief. After the Supreme Court upheld the Illinois law, however, the PRLDEF joined 285 other civil rights organizations...in asking the court to reconsider. That document does draw a link between abortion rights and slavery, but not quite as explicitly as Graham said.

"Just as Dred Scott v. Sanford refused citizenship to black people, these opinions strip the poor of meaningful citizenship under fundamental law," the documents say.

The Dred Scott case ruled that slaves are not citizens.

In the abortion case, the civil rights groups argued that, under the Constitution, treating people differently because they are black is the same as treating them differently because they are poor. By citing the Dred Scott case, the lawyers clearly sought to draw a parallel between denying abortion access and slavery. But they did not argue that denying poor women access to free abortions was a form of slavery."

Finally, is Judge Sotomayor a "judicial activist"? How would I know. How would Mr. McCarthy know. His evidence is weak and misleading, his favorite kind. He quotes Judge Sotomayor, "court of appeals is where policy is made.” That is outrageous until you understand the context of the statement. The context is that the appellate court is where the laws are interpreted and developed to be applied to a broad class of cases. Watch the longer clip on this topic.

Context matters and truth matters. This process is too important to be fooled by lies.
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