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Indiana’s Own Dave McIntosh: Vote no on Sotomayor

Posted by iusbvision on July 23, 2009

Wall Street Journal:

By DAVID MCINTOSH

As Judge Sonia Sotomayor’s confirmation hearing began last week, many commentators predicted that she would portray herself as a moderate judge committed to judicial restraint. True to these expectations, Judge Sotomayor described her judicial philosophy as quite simple: “fidelity to the law.” Yet the judge’s history on the Second Circuit—not to mention her earlier speeches—suggest that she believes judges can go beyond the law to make policy decisions. For this reason, a vote to confirm 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.

During last week’s hearing, several senators sought to determine whether Judge Sotomayor supports the Second Amendment’s right to keep and bear arms. In particular, they asked whether this right should be enforced against state governments. Sen. Russ Feingold (D., Wis.) praised the Supreme Court’s ruling in District of Columbia v. Heller (2008), in which it held that the Second Amendment guarantees an individual’s right to keep and bear arms. Mr. Feingold pressed Judge Sotomayor about her Second Circuit panel decision in Maloney v. Cuomo (2009), where she and her colleagues rejected the argument that the right to keep and bear arms should be enforced against the states, stating that “the Second Amendment applies only to limitations the federal government seeks to impose on this right.” That’s like saying you have the right to free speech in Washington, D.C., but not in Arkansas, Indiana or California.

In response to Mr. Feingold’s inquiry, Judge Sotomayor defended the Second Circuit’s decision in Maloney. She refused to acknowledge that her court could have enforced the right to bear arms against the states. Judge Sotomayor’s involvement in this decision does not bode well for a ruling in favor of Second Amendment rights if she is confirmed to the Court.

Judge Sotomayor also revealed a troubling approach to property rights in Didden v. Village of Port Chester (2006). Sitting on another Second Circuit panel, Judge Sotomayor voted to uphold the condemnation of the plaintiffs’ private property despite the obvious corruption surrounding the case. The plaintiffs’ only faced condemnation because they refused to pay off a politically connected developer. When they refused to pay, the city then condemned the land, declaring it for “public use.”

The court’s decision in Didden weakened protections for property owners even further than the Supreme Court’s decision in Kelo v. City of New London (2005) and indicates that Judge Sotomayor would likely exercise a similar approach on the Supreme Court.

Senators should also be concerned by Judge Sotomayor’s support of racial hiring preferences. In the now famous Ricci v. DeStefano (2009) firefighter case, 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. On June 29, the Supreme Court overturned the Second Circuit’s ruling, a vote of no-confidence in Judge Sotomayor’s reasoning in Ricci.

In addition, from 1980-92 Judge Sotomayor served on the board of the Puerto Rican Legal Defense and Education Fund, a prominent legal defense and education group organized in part to support unlimited abortion rights. During this period, the fund filed briefs in several prominent abortion cases that expressed unqualified support for a woman’s right to obtain an abortion and opposition to any limits on the Supreme Court’s ruling in Roe v. Wade (1973). Judge Sotomayor’s willingness to play an active role in the fund’s activities is telling.

When you look at Judge Sotomayor’s long, activist legal career, it is hard to square with her new, modest claim of “fidelity to the law.” She herself has said the Supreme Court sets policy. On that standard, Republican and moderate Democratic senators—particularly those in red and purple states—should vote against confirming Judge Sotomayor to the Supreme Court.

Mr. McIntosh, a former Republican congressman from Indiana, served as special assistant to President Reagan for domestic affairs and was a co-founder of the Federalist Society.

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