Here is my problem, in a nutshell. First, the issue with the Puerto Rican Legal Defense Fund is not an issue. I do not care whether she is liberal or conservative personally. The fact that she is liberal is fine, she has that right as an American, and as a liberal lawyer she should take up liberal causes. That is what lawyers do, and even if the Fund is extremely leftist, or whatever, that does not matter. She was a lawyer, and was doing what fit with her conscience and belief system. That is what any person in any job should be doing. The fact that she had a socialist quote in her 1976 college yearbook - so what. How many kids coming out of college are enamored with idealistic ideas, or in love with the social justice aspects of socialism. Again, this is a non-issue. She was even on a board and on a website of an international socialist organization (she has since been removed from that at her own request) - again, a non issue. So what if she is a socialist. Last I checked the country is free and you can have whatever political affiliations that you like. And did anyone really expect Obama to nominate a conservative? Of course not. Whoever he nominates will be, on the political spectrum, decidedly left of center. Politics are politics, and always will be.
But a judge is supposed to be able to take those personal biases and set them aside. This is part of the symbolism of the judicial robes - they are meant to obscure class, race, and all other potential biases. They are currently a symbol of fairness - the person in the robe does not matter, they are supposed to be an impartial arbiter of the law. Compassion and empathy are not supposed to be part of the equation...
Now, before the hue and cry of, "WTF are you talking about?!?!?", hear me out. A judge should be able to find in favor of a plaintiff or defendant that s/he does not like. Sympathy for one party means that you are no longer an impartial arbiter of justice. This was the case a hundred and fifty years ago and is still the case now. If a judge from the 1800s had sympathy for a white man, and antipathy for a minority, justice was not served. This happened far too frequently and was fundamentally unfair. The person of color was not receiving equal justice under the law. When we have sympathy or empathy for one party in a court situation, that is fine, but a judge or a jury cannot afford that luxury. In fact, many judges have said that the cases of which they are the most proud is the ones where they found in favor of someone they did not like. Experiencing these emotions is inevitable - it is what makes us human, but putting them aside in the cause of fairness and justice is what takes us to a more transcendent state of being - a bit dramatic, yes, but I sincerely believe this.
Sotomayor is sorely lacking in this department. Her history of judgements are colored by personal biases. The most recent controversial one is the one about the firefighter who got a high score on an advancement exam - she threw out the exam because too few minorities did well on it. She ignored the fact that the white fireman was a minority (dyslexic - a minority in terms of disability) that was underrepresented as well (not that this matters) who went to great personal expense and effort to prepare for the test because he really wanted to advance as a firefighter. Even other Clinton appointees think that this decision was asinine, and even her supporters give a terrible reason for the decision. I have heard her defenders say that she was concerned that the city would get sued if she found any other way. If this is actually the case, then there is no way she should be a judge. A judge is not supposed to be swayed by the impact of his/her decision - they are supposed to make a judgement on the merit of the case and the law. If a judge can be swayed by outside forces, then the whole idea of jurisprudence is out the window.
And this is where Sotomayor is an abject failure. She has been criticized by both liberal and conservative judges. A BRIEF ASIDE -As much as most conservative pundits love to say this, most liberal judges do not create law, they interpret the law that is there on the books already. Their interpretation may not be as strict as constitutional constructionists think that it should be, but there is a very small minority of judges (on either the left or the right) that simply make up law. Similarly, there are very few excessively conservative judges that simply chuck out precedent and decide against cases that have a long history of case law even if the constitutional justification is a bit fuzzy. In short, most people on both sides get up in arms over very little when it comes to judges, and they really just don't like if they think that a judge won't decide in favor of their side, rather than wanting what the Constitution demands - that is good judicial temperament. All history and protocol demands that this be the thing on which senators decide, but that has not really been the case since Bork (both sides are guilty of this, by the way, but I tend to notice the ones on the left as doing this far more frequently, especially in the Bush administration's appointees). - ASIDE ENDED. Sotomayor is one of those rare judges who seems to have no sense of proportion and makes asinine statements and decisions based not on precedent but on prejudice. By prejudice, I mean the true nature of the word. She seems to have pre-judged her cases - she comes to the conclusion before hearing the facts and either fails to cite precedent, or reaches back to the most obscure precedent available that backs up what she says. Two examples that are worrisome, one you have probably heard of, the other not:
1) The firefighter discrimination suit. People in the court tell of her harassing tone, her bias against the person bringing the suit and her general demeanor throughout the case as seeming like her decision was a forgone conclusion. Her unpublished opinion (this is not an uncommon occurrence, many decisions are not published to the public, so I will not fault her for that) contains, from what I understand, no citation of precedent. She was grilled about this in the senate hearings, and though she responded well to the bit about the opinion being unpublished, that was ancillary to the question. The questioner wanted to know why she did not cite precedent and she refused to answer. This is not the temperament we want from any judge, let alone a supreme court justice. Another judge on the same circuit court of appeals, his name eludes me, but he was a Clinton appointee as well, basically said that he thought her decision and the unpublished opinion that she wrote was one of the worst decisions he had ever seen. Everyone makes a bad judgement now and again, but she has had, in my opinion made many (like deciding that the EPA could not use a cost-benefit analysis in addressing clean water issues - one of the stupidest decisions I have ever read, and another one involving a class action suit which was barred by law, where she just decided to disregard the law - the Supreme Court turned her down 8-0 on that fiasco)
2) The next case ignores a lot of case law and reaches into the early annals of US case law, and this should be troubling to people on both sides of the aisle, as it shows a tendency to judge based on personal opinion rather than on facts and precedent. In a lawsuit on New York gun control laws, she cites precedent that says that the 2nd amendment does not apply to state or local laws, but only to federal restrictions. She cites case law from the 1870s and 1880s for this judgement. Here's the problem, however. For about the first hundred and twenty ish years of our nation's history, the Bill of Rights was deemed to only apply to the Federal Government. That means that states, or even local municipalities or towns could actually establish religions, restrict free speech, ignore due process, pursue cruel and unusual punishment, etc. While she is absolutely correct in her assertion that the two cases she cited did deal with the constitutionality of applying gun control laws on a local rather than federal level, and there is little other case law in any other direction, she has ignored a hundred and twenty plus years of gradual transference of the Constitutional protections of rights protecting us against state encroachments as well. It is this trend that actually removed state sponsored religions (which this nation had - there were states that were Catholic, and others that were Protestant - no state ever adopted Neo-Paganism, sorry acupuncturist), gave us Miranda rights, the right to privacy, the right to due process on a state level, etc. Formerly, all of these protections were only that the Federal Government could not encroach on the rights established in the Constitution. The 14th amendment went a long way to redressing some of the inequities in freedoms, but because it is subject to interpretation, some judges, especially in the late 1800s, tried to circumvent it.
A brief refresher: I have included section 1 of the amendment, below.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Of course, I introduced the bold-faced, red part, because I think that it spells out rather clearly that states cannot take away constitutional rights of citizens. Sotomayor's decision ignores that fact, and she sides with court opinions that were made by Courts that were trying deliberately to limit the power of the 14th Amendment.
Here's why this is worrisome for both sides. If she is willing to violate the 14th Amendment and find obscure case law to validate that, she could do that for any other cause that she espouses. Let's not forget she is a Latin Catholic (most people call 'em Roman Catholics, but what even most Roman Catholics don't know is that we are actually Latin Catholics - the Roman bit is something of an insult handed to us by the Protestants). We do not know where she stands on gay marriage or abortion - she has not made many decisions on these, and if she actually decides that she can flout precedent, she could easily justify the eradication of the so-called "right to privacy". This could lead to an interesting situation on the high court.
Not that I think that one person will overturn abortion or undo gay rights, but it is something that should concern people on the right and the left - she has shown repeatedly her willingness to ignore precedent in favor of her opinion.
And this is not to even mention her speeches, where she has repeatedly said such foolish things as
- a "wise Latina" can make better decisions than a white man
- there are "physiological, emotional, and sociological reasons" that a Latina will make better decisions than a white man
- that appellate courts are "where policy is made" and that judges should essentially be making social policy (this is obviously under the purview of legislators)
- that empathy is an important quality for a judge, and that empathy can and should override logic and adherence to precedent and case law.
There are many more, but I think you can see that she would not even qualify to be a California juror with these opinions. For your edification, the summary of what California jurors are required to do, as well as the jury instructions:
"Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?"
As a juror you should think seriously about the oath before taking it. The oath means you give your word to reach your verdict upon only the evidence presented in the trial and the court's instructions about the law. You cannot consider any other evidence and instruction other than those given by the court in the case before you. Remember that your role as a juror is as important as the judge's in making sure that justice is done.
(http://www.courtinfo.ca.gov/jury/step1.htm)
If she can't even pass the juror qualifications, what makes us think that she can be on the high court of the land. And just to be clear, if I encountered these same qualities in someone who agreed with my positions, I would still oppose that person. (In fact, she may share some of my views on abortion, but I would not approve of her flouting the 14th Amendment to restrict access to abortions.)
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