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Bartholomew Roberts
May 26, 2009, 08:42 AM
Here is what SCOTUSBlog (http://www.scotusblog.com/wp/judge-sotomayors-appellate-opinions-in-civil-cases/)* has to say about her past record of decisions regarding the Second Amendment:

*SCOTUSBlog is sponsored by Akin-Gump, the firm that represented D.C. in Heller.

Second Amendment: Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year. In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) 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 district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, the panel affirmed. Relying on the Supreme Court’s 1886 decision in 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. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Maloney’s lawyers intend to file a petition for certiorari in late June.

So it looks like we can expect the new nominee to vote against incorporation when the matter comes before the Supreme Court. Definitely worth giving your Senators an earful about - especially those of you with pro-Second Democratic Senators.

maestro pistolero
May 26, 2009, 08:50 AM
This better go down in flames. She doesn't believe the second amendment applies to the states. This nomination spells big trouble.

Colt1911forever
May 26, 2009, 08:54 AM
I am sorry but you do not seem that people do not understand how much control the Dems have on this choice. Dems are 12 to 7 on the Judiciary committee in the Senate. They have 60 Seat majority in the Senate.

Like it or not Obama could nominate anyone they want. If you stop listening to the BS and the propaganda you would realize that this lady is really is middle of the road leaning left.

Compared to who he could have picked Pamela Karlan who was the conscious pick of the far left.

http://topics.nytimes.com/top/....html?inline=nyt-per

She is middle of the road and has good track record in her thoughts on the Constitution. She has a professional and academic record that puts her in the top 1% of the 1% of judicial minds in the country. You might not like her stance but I cannot see anyway she does not get confirmed quickly.

Sorry for bringing real facts to this thread. Please return to screaming that the sky is falling.

a7mmnut
May 26, 2009, 08:58 AM
It's going to be big trouble for ALL traditional right wing issues, and all it takes is one overturned verdict. What they don't tell us until it's passed is what worries me the most.:(

-7-

maestro pistolero
May 26, 2009, 09:01 AM
Her decision to invalidate a 2A case relied on Presser AFTER Heller. You call that moderate. I have another term for it. And Her ACADEMIC record is supposed to be re-assuring? I don't think this will be a slam-dunk because of the Dems majority. We shouldn't underestimate the weight of this one issue, and the BD Dems position on it. It will not be a walk in the park. There are BIG 2A cases on their way to the SCOTUS right now, and 5-4 was WAY too close to call.

Colt1911forever
May 26, 2009, 09:03 AM
snip - Irrelevant personal comments - GEM

The right does not have the juice to do anything about it. That is the result of losing both the Presidential election and control of the Senate.

madmo44mag
May 26, 2009, 09:06 AM
I worry less about her middle of the road slanted left ideas as I do on how it will help bring in more Obama supporters.

Snipped - not relevant - GEM

Colt1911forever
May 26, 2009, 09:10 AM
Yup if the right goes after her Hispanic back ground which it seems like they will the Right will have made a huge longer term strategy mistake.

Like it or not Hispanics are the largest emerging voting demographic. If the right alienates that group of growing voters they will be cutting off their nose to spite their face.

Colt1911forever
May 26, 2009, 09:13 AM
If you don't have the votes you cannot stop the nomination.

The right does not have the votes on the Judiciary Council or the Senate at large.

DO you even know who appointed her to the bench?

Technosavant
May 26, 2009, 09:25 AM
Anybody Obama puts up right now will be going right through- no doubt about it. The only thing that can change it is the mid term elections next year, and even those may not go so well.

Still, though, Ginsburg wasn't exactly a right leaning justice. Sotomayor may be more leftist than Souter, she could just be a left leaning moderate. Either way, it isn't going to cause any real shifts in the SCOTUS makeup. The ballgame is still the same.

Colt1911forever
May 26, 2009, 09:27 AM
I agree 100% Tech.

Bartholomew Roberts
May 26, 2009, 09:59 AM
Colt1911Forever,

The Senate just voted 67-29 to allow states to regulate the carrying of guns in national parks. You seem to be mistaking the number of Democratic Senators for the number of Senators who will automatically vote to confirm Sotomayor.

Now it may be the case that Democratic Senators who claim to support the Second Amendment will nevertheless vote to confirm someone who held that the Second Amendment was not incorporated and relied on precedent that was both racist and outdated to support it, although you would think someone of such high academic scholarship as Sotomayor would have realized that Presser predated the selective incorporation via due process argument that made the First Amendment and many others applicable to the states.

However, I don't think it is unreasonable to point this decision out to our Senators and ask them how they can claim to support the Second Amendment and then vote for the nomination of someone who went out of her way to deny it - and didn't even write a good legal decision to support it at that.

We need to fight here and now on this nomination; because the Obama Administration needs to know BEFORE they make the next nomination that this is going to be a sensitive area that is going to cause controversy. The louder the noise we make now, the better we will be for the next battle - the one where that one vote that was in favor of Heller gets replaced.

I have to say that I don't agree much with your assessment of Sotomayor as a suitable judicial candidate or your "Lie back and enjoy it" line of reasoning regarding her nomination.

Colt1911forever
May 26, 2009, 10:07 AM
You are right a Summa Cum Laude Grad from Princeton who received the highest undergrad merit scholarship honor the school gives out and who got her JD from Yale while being the editor of the law journal. She has been on the federal bench since Bush I put her there. The 2nd Circuit appeals court is dynamic court which she has handled well. She is clearly qualified to be a Supreme Court Judge.

In the end you can disagree with her stance and her take on the law but to attempt to paint her as under qualified lightweight is not accurate.

The only reason the national parks deal got done was because the Dems and the Reps wanted the CC bill to pass. It would not have passed as stand alone issue. I am glad it did but it is not representative of the real tone of the country.

JWT
May 26, 2009, 10:13 AM
Colt - a bit off topic, but on what do you base the statement " it is not representative of the real tone of the country" regarding passage of the right to carry in National Parks?

Glenn E. Meyer
May 26, 2009, 10:17 AM
[preachy-time]

A hint: When a topic has ethnicity involved - it is possible to stray into commentary that it inappropriate. Please avoid that.

Also, if you disagree with another poster, stay away from saying nasties about that poster. [/preachy-time]

GEM

Colt1911forever
May 26, 2009, 10:20 AM
Yes JWT.... if it was not attached to the CC bill and got full debate and coverage I do not believe it would have passed. The NRA did a great job of sneaking that one in on a very popular bill. If you look at the polls and the numbers national park carry is not an issue most people care or even know about. It was a political win for a very small number of people.

It passed because very poor CC bill was a political win which the Dems could not pass up.

maestro pistolero
May 26, 2009, 10:22 AM
There was the separate roll call vote on the Coburn NPS firearms amendment. The bill passed 361-64.

JWT
May 26, 2009, 10:24 AM
Colt - guess I didn't ask my question correctly. I understand your feeling that it might not have passed as a stand alone piece of legislation. I'm wondering why you don't think it represents the 'real tone of the country'?

Colt1911forever
May 26, 2009, 10:29 AM
The NRA has huge pull. They used that to get this done. If you look around the country there is not national support for this measure.

There are lots of boots on the ground from the NRA telling the new Dems from traditionally conservative areas that if you do not vote for this we will crush you in the next election. This is the greatest motivating factor surrounding this vote on its own merits.

The Dems have gotten to the 59/60 number by running pro -gun Dems with the support of the NRA. The NRA coughed up the cash and got these new Dems a win. Once you are in the relection machine takes over and you have to listen, not to the people, but the ones that paid your way.

This is how the NRA is playing the game and they do it well.

Bartholomew Roberts
May 26, 2009, 10:55 AM
You are right a Summa Cum Laude Grad from Princeton who received the highest undergrad merit scholarship honor the school gives out and who got her JD from Yale while being the editor of the law journal. She has been on the federal bench since Bush I put her there. The 2nd Circuit appeals court is dynamic court which she has handled well. She is clearly qualified to be a Supreme Court Judge.

Colt, if you are trying for sarcasm, you might want to watch your grammar - otherwise it doesn't tend to make much sense.

But you bring up a great point, here is someone who has graduated from an Ivy League Law School and has a considerable academic career and federal judge experience, and yet in the Maloney v. Cuomo (http://homepages.nyu.edu/%7Ejmm257/000-decision.pdf) decision, she doesn't even discuss the fact that Presser predated the doctrine of selective incorporation via due process or discuss how that might affect the Plaintiff's case. In fact, none of her Second Amendment decisions (including her 2004 decision that says the Second is a collective right) has much scholarship in it at all.

So here we have what by all accounts is a distinguished legal scholar making rulings against the Second Amendment and then declining to explain or expound on the legal scholarship behind those rulings? What are we to make of that? Is that the kind of judge you think makes an acceptable Supreme Court Justice?

Yes JWT.... if it was not attached to the CC bill and got full debate and coverage I do not believe it would have passed.

As I noted earlier and maestro pistolero noted, the amendment passed by a supermajority in both houses of Congress in order to be attached to the credit card bill. Of course you are right that it wouldn't have passed as a standalone bill - the Democratic House leadership or Senate Judiciary committee would have killed it in its crib as they control the committees and legislative process. However, I'll just note that every time the bill got a floor vote, it wasn't lacking for support. Apparently the wishes of the Senate Judiciary committee aren't always in line with a supermajority of Senators.

I am glad it did but it is not representative of the real tone of the country.

I don't get this comment... it had plenty of popular support in both the Senate and the House, who are there to represent the tone of the country. Surely your aren't suggesting that the Democratic leadership's failure to kill the bill by roundfiling it in committee isn't representative of the tone of the country more than the votes of 400+ Senators and Representatives?

There are lots of boots on the ground from the NRA telling the new Dems from traditionally conservative areas that if you do not vote for this we will crush you in the next election.

All the more reason we should be telling these Senators that the NRA is right and that we oppose the appointment of judges who can't read the plain intent of the Second Amendment and apply it in cases.

pendennis
May 26, 2009, 11:29 AM
Colt1911forever wrote:

She is middle of the road and has good track record in her thoughts on the Constitution. She has a professional and academic record that puts her in the top 1% of the 1% of judicial minds in the country. You might not like her stance but I cannot see anyway she does not get confirmed quickly.

She is hardly a scholar, since she cited the appeals courts justices as those who "set policy". This is a direct quote from her at a speech at Duke University. She has also been taken to task in writing, by another Hispanic justice, for failing to address constitutional issues in her reviews.

Since when do courts set policy? Isn't their task to interpret the law and U.S. Constitution?

Sorry, she's just another Demo hack.

ammoeater
May 26, 2009, 11:49 AM
"All of the legal defense funds out there, they're looking for people with court of appeals experience because it is...court of appeals is where policy is made...and I know, and I know this is on tape and I should never say that because we don't make law I know... um, I, okay, I know, I know....I'm not promoting it, I'm not advocating it, I'm, you know okay." Sonia Sotomayor

http://www.youtube.com/watch?v=OfC99LrrM2Q

Pretty scary quote for a nominee for the SCOTUS. :eek:

hogdogs
May 26, 2009, 12:06 PM
This is a true question not sarcastic in any way...
Who would have been the best choice for the people in this position of the group that our very liberal president would have to choose from...
Brent

Brian Pfleuger
May 26, 2009, 12:18 PM
So tired of hearing about qualifications based on race, creed, gender, orientation, religion, hair color, tooth whitening strategy....


Why do I care if the nominee is female or hispanic or white or male or jewish or atheist or....


How about QUALIFIED. With the emphasis on the PERIOD?

How about someone who is well versed in constitutional law and things like context and intent? (I'm not saying this woman is or isn't but what you hear is hispanic woman hispanic woman hispanic woman:mad:)

Just now on Fox News: "She's the first hispanic woman on the Supreme Court. Highly qualified." AARGH!

maestro pistolero
May 26, 2009, 12:25 PM
Ammoeater, that clip is very telling, and frightening, And I suspect (and hope) it will bite her in the rear-end.

Csspecs
May 26, 2009, 01:28 PM
Correct me if I'm wrong, but was the person that she is replacing an anti anyway? If so it would seem that nothing has been made worse its just about the same.

No one here honestly expected him to pick someone for the NRA A list. Right?

AZ Med18
May 26, 2009, 02:00 PM
True I am tired about race and such playing into qualifications. Why cant we just have no picture of this person. Just there history and record.

Being the first in something does not make one highly qualified......

stargazer65
May 26, 2009, 02:02 PM
No one here honestly expected him to pick someone for the NRA A list. Right?

Knowing that he would pick a liberal justice, I was hoping he would happen to pick a liberal that was conservative on at least a few issues (pro gun rights, pro-life, pro capital punishment, and pro homeschooling, etc...);)

hogdogs
May 26, 2009, 02:06 PM
No help for ye' ol' hogdogs? Curious about the other possible choices and who would have been best for us. Lord knows the dems don't like the conservative choices and the conservatives despise the liberal president's choices... so of those suspected to be on the list of possibilities... Who is best for us all in this case?
Brent

tiberius10721
May 26, 2009, 03:09 PM
I just pray that no conservative judges retire before we get another republican president .with this pick no wonder people are buying guns and ammo like crazy!I was starting to slowdown on gun and ammo purchases but now I'm going to keep on buying.If obama gets re-elected we are so screwed,cause thats when his real left wing agenda will come out!

Bartholomew Roberts
May 26, 2009, 03:45 PM
Curious about the other possible choices and who would have been best for us. Lord knows the dems don't like the conservative choices and the conservatives despise the liberal president's choices... so of those suspected to be on the list of possibilities... Who is best for us all in this case?

hogdogs, the short list was: Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood. California Supreme Court Justice Carlos Moreno was also mentioned. Much like the President's other appointments, not any friendly faces for gun owners and a lot of openly hostile ones.

Of those, only Elena Kagan (former dead of Harvard Law) has no past anti-gun record or ruling and what testimony she has given before Congress was somewhat supportive of Heller and stare decisis. She was also quizzed on the issue of using foreign law (with gun control specifically mentioned) in arguments before the Supreme Court. She stated she saw no support for the use of foreign law in the Heller decision; but as Advocate for the government, she would use such an argument if it appeared it might sway the Justices over to the government's argument.

I doubt she would win any awards from the NRA; but she looks good next to this bunch of nominees, plus as someone who just went through the Senate confirmation process, she would be a safe bet for the Obama Administration. Of course, her Second Amendment views might be much worse than any of these and she was simply smart enough to keep them to herself.

gc70
May 26, 2009, 04:47 PM
I don't view the decision in Maloney quite so negatively.

yet in the Maloney v. Cuomo decision, she doesn't even discuss the fact that Presser predated the doctrine of selective incorporation via due process or discuss how that might affect the Plaintiff's case.

Maloney only argued (http://homepages.nyu.edu/~jmm257/BRIEF.pdf) that Presser and Bach should be reviewed in light of the DC. Circuit decision in Parker. In a post-Heller letter (http://homepages.nyu.edu/~jmm257/28-j-letter.pdf), he acknowledged that "Heller is not directly applicable as against state restrictions on the possession of arms in the home" (Presser) but stated "that the Court will soon hold that the Second Amendment is among those Bill of Rights provisions that have been “incorporated” against the states." It was not much of an argument for the court to work with - certainly not the carefully crafted type of Due Process approach that was persuasive in Nordyke.

Relying on the Supreme Court’s 1886 decision in 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. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.”

The Nordyke (http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf) court reached the same conclusion:

There are three doctrinal ways the Second Amendment might apply to the states: (1) direct application, (2) incorporation by the Privileges or Immunities Clause of the Fourteenth Amendment, or (3) incorporation by the Due Process Clause of the same Amendment.

Supreme Court precedent forecloses the first option. The Bill of Rights directly applies only to the federal government. (pages 9-10 citing Barron, Cruikshank, and Presser)

I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.

IZZY
May 26, 2009, 04:52 PM
sorry if I am underwhelmed:

http://books.google.com/books?id=qViXyy_58LsC&pg=PR9&lpg=PR9&dq=the+international+judge+sotomayor&source=bl&ots=MsfNPZwJRH&sig=SOoS-n_Zc_zY3V4sCXQk2T9akS8&hl=en

Seems we have a lot to learn in international treaties on how we "interpret" the constitution.:barf:

With a new Civillian /small Arms treaty under the microscope, it does not look good.

DonR101395
May 26, 2009, 10:09 PM
Looks like she's qualified to me.:eek:
She's had 10 reversals out of 14 of her cases that went before the Supreme Court.
Two cases upheld, but her reasoning was cited unanimously as faulty.
One case pending.
And one case that was actually upheld clean.
Yep, sounds like she's qualified to me.:rolleyes:

http://www.cnn.com/2009/POLITICS/05/...html#cnnSTCTex


Cases Reviewed by the Supreme Court
• Ricci v. DeStefano 530 F.3d 87 (2008) -- decision pending as of 5/26/2009
• Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007) -- reversed 6-3 (Dissenting: Stevens, Souter, Ginsburg)
• Knight vs. Commissioner, 467 F.3d 149 (2006) -- upheld, but reasoning was unanimously faulted
• Dabit vs. Merrill Lynch, 395 F.3d 25 (2005) -- reversed 8-0
• Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005) -- reversed 5-4 (Dissenting: Breyer, Kennedy, Souter, Alito)
• Malesko v. Correctional Services Corp., 299 F.3d 374 (2000) -- reversed 5-4 (Dissenting: Stevens, Souter, Ginsburg, Breyer)
• Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997) -- reversed 7-2 (Dissenting: Stevens, Breyer)
• Affirmative Action (New Haven firefighter case): Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting the City of New Haven's decision to throw out the results of an exam to determine promotions within the city's fire department. Only one Hispanic and no African-American firefighters qualified for promotion based on the exam; the City subsequently decided not to certify the results and issued no promotions. In June 2008, Sotomayor was part of a 7-6 majority to deny a rehearing of the case by the full court. The Supreme Court agreed to review the case and heard oral arguments in April 2009. Ricci v. DeStefano 530 F.3d 87 (2008)
• Environment (Protection of fish at power plants): Sotomayor, writing for a three-judge panel, ruled that the Environmental Protection Agency may not engage in a cost-benefit analysis in implementing a rule that the "best technology available" must be used to limit the environmental impact of power plants on nearby aquatic life. The case involved power plants that draw water from lakes and rivers for cooling purposes, killing various fish and aquatic organisms in the process. Sotomayor ruled that the "best technology" regulation did not allow the EPA to weigh the cost of implementing the technology against the overall environmental benefit when issuing its rules. The Supreme Court reversed Sotomayor's ruling in a 6-3 decision, saying that Sotomayor's interpretation of the "best technology" rule was too narrow. Justices Stevens, Souter, and Ginsburg dissented, siding with Sotomayor's position. Riverkeeper, Inc. vs. EPA, 475 F.3d 83 (2007)
• Taxes (Deductability of trust fees): In 2006, Sotomayor upheld a lower tax court ruling that certain types of fees paid by a trust are only partly tax deductable. The Supreme Court upheld Sotomayor's decision but unanimously rejected the reasoning she adopted, saying that her approach "flies in the face of the statutory language." Knight vs. Commissioner, 467 F.3d 149 (2006)
• Finance (Rights of investors to sue firms in state court): In a 2005 ruling, Sotomayor overturned a lower court decision and allowed investors to bring certain types of fraud lawsuits against investment firms in state court rather than in federal court. The lower court had agreed with the defendant Merrill Lynch's argument that the suits were invalid because the Securities Litigation Uniform Standards Act of 1998 required that such suits be brought only in federal court. The Supreme Court unanimously overturned Sotomayor's ruling in an 8-0 decision, saying that the federal interest in overseeing securities market cases prevails, and that doing otherwise could give rise to "wasteful, duplicative litigation." Dabit vs. Merrill Lynch, 395 F.3d 25 (2005)
• Health Insurance (Reimbursement of insurance benefits): In 2005, Sotomayor ruled against a health insurance company that sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of the federal employee had won $3.2 million in a separate lawsuit from those whom she claimed caused her husband's injuries. The health insurance company sued for reimbursement of the benefits paid to the federal employee, saying that a provision in the federal insurance plan requires paid benefits to be reimbursed when the beneficiary is compensated for an injury by a third party. The Supreme Court upheld Sotomayor's ruling in a 5-4 opinion. Justices Breyer, Kennedy, Souter, and Alito dissented. Empire Healthchoice Assurance, Inc. vs. McVeigh, 396 F.3d 136 (2005)
• Civil Rights (Right to sue federal government and its agents): Sotomayor, writing for the court in 2000, supported the right of an individual to sue a private corporation working on behalf of the federal government for alleged violations of that individual's constitutional rights. Reversing a lower court decision, Sotomayor found that an existing law, known as "Bivens," which allows suits against individuals working for the federal government for constitutional rights violations, could be applied to the case of a former prisoner seeking to sue the private company operating the federal halfway house facility in which he resided. The Supreme Court reversed Sotomayor's ruling in a 5-4 decision, saying that the Bivens law could not be expanded to cover private entities working on behalf of the federal government. Justices Stevens, Souter, Ginsburg, and Breyer dissented, siding with Sotomayor's original ruling. Malesko v. Correctional Services Corp., 299 F.3d 374 (2000)
• Intellectual Property (Distribution of freelance material): As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers' work on electronic databases and archives such as "Lexis/Nexis" without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor's decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor's original ruling). Justices Stevens and Breyer dissented, taking Sotomayor's position. Tasini vs. New York Times, et al, 972 F. Supp. 804 (1997)

alloy
May 27, 2009, 05:22 AM
She's had 10 reversals out of 14 of her cases that went before the Supreme Court.
Two cases upheld, but her reasoning was cited unanimously as faulty.
One case pending.
And one case that was actually upheld clean.


Impressive record.

Bartholomew Roberts
May 27, 2009, 06:42 AM
I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.

Well, it shows the difference a good lawyer makes at least. Nordyke did not challenge the "settled law" aspect of Presser, it simply used the same due process through incorporation argument that has been used to drive around Slaughterhouse without overturning it (and used by the Second Circuit I might add, and likely used by Sotomayor in other arguments). The Second recognized that the issue was there and then ruled only on the direct aspect of the challenge - thought admittedly, Maloney's lawyer didn't do much more than throw in a one liner equivalent to "Hey, you know selective incorporation through due process is likely!"

I have to admit though, after looking at the short list of other candidates, Sotomayor is still probably one of the better outcomes we could have expected given an unbashedly anti-gun President and a filibuster proof majority in the Senate.

vranasaurus
May 27, 2009, 07:47 AM
I believe that circuit courts should not wander off on their own to reconsider Supreme Court decisions. Presser (as objectionable as it may be) is still "settled law" until the Supreme Court says otherwise. Maloney ran face first into Presser while Nordyke found a way around it.

For the most part I agree. However, when more recent Supreme Court precedent seems to support a different interpretation I am OK with Circuit courts using that precedent to reach a conclusion different from the Supreme Court over 100 years ago.

I don't consider it wandering when the Supreme Court has laid out a map.

buzz_knox
May 27, 2009, 08:13 AM
Correct me if I'm wrong, but was the person that she is replacing an anti anyway? If so it would seem that nothing has been made worse its just about the same.


One fundamental difference is that Souter was an outsider. He went his own way and had little effect outside of his vote. Sotomayor is seen as a consensus builder. She has far more ability to sway people to her side.

wingman
May 27, 2009, 08:15 AM
True I am tired about race and such playing into qualifications. Why cant we just have no picture of this person. Just there history and record.


Personally I believe the one fair presidential election we could have would be via radio without pictures or clips running 100 times daily perhaps it would force people to listen rather then take the American Idol route to an election, but it won't happen and certainly we will continue to elect all show not substance.


Being the first in something does not make one highly qualified......

Agreed, I grow weary of the race card and how great it is to be first, how about qualified for the criteria,but the far left has survived on race issues and dividing America.

OuTcAsT
May 27, 2009, 08:52 AM
The part that troubles me the most is her quote ;

"All of the legal defense funds out there, they're looking for people with court of appeals experience. Because it is - court of appeals is where policy is made.

The biggest problem I have is seeing a nominee that redily admits that she believes in "Judicial legislation" .

arkie2
May 27, 2009, 08:57 AM
Colt1911forever has made the statement a few times that Sotomayor was put on the bench by Bush 41. That's actually a mischaracterization of what really happened. There was an arrangement in New York: for every X number of appointments controlled by the party in power, the party out of power (from 1980 through 1992, the Democrats) would get Y number (a smaller number, but at least something, which is better than nothing)...

That is how Sonia Sotomayor was nominated by Bush-41. She was a selection of Democratic Sen. Pat Moynihan. The Republicans agreed to her appointment in order to ensure that Moynihan would not block nominees urged by Republican Sen. Al D’Amato.

...Sotomayor was not a Republican idea; she was a Republican accommodation.

JWT
May 27, 2009, 09:00 AM
She certainly indicates she believes in legislation from the bench based on her statement. The conservatives will have a hard time opposing her without inflaming the Hispanics and can't afford to loose their support in upcoming elections. She's exactly what O wanted - a very liberal, activist jurist and one that will be difficult - probably impossible - to block.

maestro pistolero
May 27, 2009, 09:09 AM
Is there a chance to get incorporation settled before she arrives (if confirmed)?

Bartholomew Roberts
May 27, 2009, 09:42 AM
I doubt it; but Sotomayor might recuse herself if Maloney makes it to SCOTUS first, since she handled that at the lower court. Although, I'd rather she stayed and Nordyke or Chicago came first as Maloney is not the best case for us facts-wise.

gc70
May 27, 2009, 09:58 AM
The Second recognized that the issue was there and then ruled only on the direct aspect of the challenge

Judicial activism comes in many forms, one of which is going beyond the question(s) posed to the court. SCOTUS recognized the issue of incorporation in Heller, but only ruled on the direct question of handguns in the home.

gc70
May 27, 2009, 10:19 AM
She's had 10 reversals out of 14 of her cases that went before the Supreme Court.

Only 7 cases were actually listed, first giving the case names and then a short discussion of each.

Based on the list provided, the record is 5 reversed, 1 upheld, and 1 pending.

csmsss
May 27, 2009, 10:21 AM
One fundamental difference is that Souter was an outsider. He went his own way and had little effect outside of his vote. Sotomayor is seen as a consensus builder. She has far more ability to sway people to her side.Interesting. I draw exactly the opposite conclusion from what I read of her. She is an intellectual lightweight, a bully on the bench and one who has achieved very little respect from her peers on the 2nd Circuit. Her opinions have been often as not overturned on appeal, and even when not overturned have been resoundingly critiqued as having little substance and missing the primary points of legal contention.

She is exactly what we should have come to expect from our current President - an advocate and race hustler who will unfailingly take every opportunity to pursue policy agendas and who will "interpret" the Constitution in a tortured fashion in order to achieve these ends.

Brian Pfleuger
May 27, 2009, 10:36 AM
Interesting. I draw exactly the opposite conclusion from what I read of her. She is an intellectual lightweight, a bully on the bench and one who has achieved very little respect from her peers on the 2nd Circuit. Her opinions have been often as not overturned on appeal, and even when not overturned have been resoundingly critiqued as having little substance and missing the primary points of legal contention.

She is exactly what we should have come to expect from our current President - an advocate and race hustler who will unfailingly take every opportunity to pursue policy agendas and who will "interpret" the Constitution in a tortured fashion in order to achieve these ends.

Indeed. Unfortunately, he has at least until the midterm elections to destroy our country to his hearts content. She will be approved and she will likely be the worst justice in history, much like most of the rest of the Obama presidency.

BlueTrain
May 27, 2009, 10:46 AM
So the court makes policy now. Is that right? Anyway, did you ever think that some of the people here just might have a left-wing agenda?

Glenn E. Meyer
May 27, 2009, 10:53 AM
We're done - IMHO, if we start to posit agendas by list members, race hustler, we've exhausted useful comment on the actual L and CR issues.

Thanks for previous informative comment on her record and history.

GEM.