Last night I responded to a comment from our resident troll Barry (who's been awfully quiet lately since his party went completely off the deep end), whose concern about the Constitution is limited solely to gun rights, had expressed his concern about the Sotomayor nomination to the Supreme Court.
I think even if Barack Obama had nominated Robert Bork to the Court, I think the wingnuts would have similarly gone bonkers, because it's all about this stealth Muslim terrorist radical Negro (sic) having the opportunity to make such decisions. I'm no legal expert, but from what I'm reading, Sotomayor is not the judicial equivalent of William Ayers; she's actually a fairly centrist judge who relies heavily on precedent when deciding cases. In fact, as the New York Times reports, Sotomayor isn't always favorable to the idea that a woman's right to terminate a pregnancy is absolute, as today's New York Times points out:
In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”
nd in a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.
In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.
Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.
Now these cases don't deal specifically with Roe, but the case which has Barry (and presumably others whose concern with the Bill of Rights begins and ends with the right to bear shoulder-fired missile launchers to hunt deer) up in arms (heh) is Maloney v. Cuomo, in which Sotomayor ruled with the majority that a New York State law against possession of nunchaku did not violate the Second Amendment:
The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’”
If anything, this decision should hearten the fetophiles, because it gives an indication that Sotomayor might be favorable to throwing the matter back to the states.
Jill Filipovic of Feministe is relatively unconcerned about the nomination even in the face of Sotomayor's vote in Planned Parenthood Federation of America, Inc. v. Agency for International Development:
The First Amendment claim was dismissed because the issue had already been decided in the Planned Parenthood case. The Due Process claim was dismissed for lack of prudential standing, because CRLP's complaint did not fall within the "zone of interests" protected by the Due Process Clause - it was a third party (the foreign NGOs), not CRLP, whose rights are constitutionally unclear because of the Gag Rule. The Equal Protection claim was dismissed because the Gag Rule's privileging of anti-abortion views did not infringe upon a fundamental Constitutional right or target a suspect class (legalese for a classification of groups which have historically been subject to discrimination, and therefore receive increased scrutiny under the Equal Protection Clause); further, Sotomayor pointed out that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."
The Center for Reproductive Law and Policy lost the case, and the Global Gag Rule continued to compromise women's health around the globe until Barack Obama took office.
That outcome disheartened feminists, liberals and reproductive justice advocates, and I wish it had been decided differently. But the decision wasn't necessarily a bad one - and it absolutely should not stop progressive women's rights activists from supporting her nomination.
If anything, CRLP v. Bush highlights precisely why Sotomayor should, in a sane world, be an easy confirmation: She sticks to the rule of law, respects precedent and writes thoughtful and reasoned opinions. She was nominated to the federal district court by George H.W. Bush. Her decisions are left-leaning insofar as she generally seeks to protect Constitutional rights by supporting religious freedom and free speech, and she often sides with the plaintiffs in discrimination cases - hardly "activist" material. But she's not a liberal dream by any stretch. She has some bad First Amendment cases to her name (Doninger v. Niehoff, where she sided with a school that disqualified a student from running for senior class secretary after the student posted a vulgar school-related message on her blog), and some bad Fourth Amendment ones (United States v. Howard, where she held it was constitutional for state troopers to entice suspects away from their cars in order to allow other troopers to search the vehicles for drugs). Those cases, though, are the exceptions rather than the rule; generally, Sotomayor follows a fairly consistent Constitutional philosophy, and errs on the side of maintaining rather than limiting rights.
Given her history, it's hard to grasp why conservatives brand her "a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written," as Wendy E. Long, counsel to the right-wing Judicial Confirmation Network, put it. Sotomayor has clearly and consistently deferred to "the law as written" -- she's considerably less activist and dogmatic than Bush's two Supreme Court appointees, John Roberts and Samual Alito. Unfortunately for conservatives, the law as written does affirm the rights to speak without governmental intervention, to practice your religion freely, to be free from state-sponsored religious exercises, to maintain your privacy, and to retain certain protections even if you are a suspected criminal or a criminal defendant.
We were never going to get a progressive dream nominee from this president, just as we weren't going to get a progressive dream agenda from this president. Anyone who painted his or her own agenda onto the face of Barack Obama during the campaign because he was inspiring just wasn't paying attention to this guy's record. This is a thoughtful, careful man who has spent his entire life straddling two different worlds, and there was no reason to believe he'd be any different as president. This is precisely the kind of attempt at a consensus nominee (albeit with the added benefit of being a woman and having the potential to shut the door between Republicans and Latino voters for good) I would expect him to make. If the wingnuts would crawl out of the deep end of the insanity pool for five minutes they might see that.
But then they wouldn't be nearly as much fun to watch.
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