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Old May 27, 2009, 06:53 PM   #1
Acujeff
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Obama Declares War on America’s Gun Owners With Supreme Court Pick

Obama Declares War on America’s Gun Owners With Supreme Court Pick
By Ken Blackwell
Senior Fellow, American Civil Rights Union/Family Research Council

May 26th, 2009
http://foxforum.blogs.foxnews.com/20...ama_sotomayor/

President Obama’s nomination of Judge Sonia Sotomayor is a declaration of war against America’s gun owners and the Second Amendment to our Constitution. If gun owners mobilize and unite, it’s possible (though unlikely) to stop this radical nominee.

—————

According to Judge Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that’s okay under the Constitution.

—————

Last year the Supreme Court handed down the landmark decision in D.C. v. Heller, holding that the Second Amendment right to bear arms applies to individual citizens in their private lives. The ruling marked a turning point in gun rights in this country.

In the past year, the biggest question courts now face is whether the Second Amendment applies to the states. That may sound crazy, but the reality is that the Bill of Rights only controls the federal government, it doesn’t apply directly to states or cities. Only the parts of the Bill of Rights that are “incorporated” through the Fourteenth Amendment apply to the states.

Since the Heller decision, only two federal appeals courts have written on the Second Amendment. That’s six judges out of about 170. Of those six, three said the Second Amendment does apply to the states. And those judges were out of the liberal Ninth Circuit in California, and included a judge appointed by Bill Clinton and another appointed by Jimmy Carter. — Even leftist judges can get this.

But not Judge Sonia Sotomayor. She is one of only three federal appellate judges in America to issue a court opinion saying that the Second Amendment does not apply to states. The case was Maloney v. Cuomo, and it came down this past January.

That means if Chicago, or even the state of Illinois or New York, wants to ban you from owning any guns at all, even in your own house, that’s okay with her. According to Judge Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that’s okay under the Constitution.

This issue could not be more important. Today, on the very day President Obama has announced Judge Sotomayor’s nomination, the National Rifle Association is arguing Second Amendment incorporation in court before the Seventh Circuit in a case challenging the Chicago ban on handguns.

If this case, or one like it, goes to the Supreme Court, Justice Sotomayor would say that Chicago can ban all your guns. If she can persuade her liberal colleagues on the Court to join her, it could become the law of the land that states and cities can ban guns. Should that happen, then you can expect anti-gun liberals in state legislatures to rush to pass new state laws doing exactly that.

The White House is telling us all about Judge Sotomayor’s compelling personal story — and it is an amazing story of what is possible “only in America.” But compelling personal stories are not the question. Miguel Estrada, whom President George W. Bush nominated to the D.C. Circuit appeals court and was planning on nominating to the Supreme Court, had a compelling story as a Hispanic immigrant who legally came to this country not even speaking English. Democrats filibustered Mr. Estrada.

Supporters point out that Judge Sotomayor was first appointed by George H.W. Bush for the federal trial court — before Bill Clinton elevated her to the Second Circuit appeals court. That’s true, but George H.W. Bush also gave us Justice David Souter, so clearly he wasn’t too careful about putting liberals on the federal bench. We can’t allow the left to hide behind the Bushes.

But when it comes to gun rights, we don’t need to guess. Judge Sotomayor has put in writing what she thinks. President Obama has nominated a radically anti-Second Amendment judge to be our newest Supreme Court justice.

There are a number of pro-Second Amendment Democratic senators from deeply red states, including Mark Begich from Alaska, Jon Tester and Max Baucus from Montana, Ben Nelson from Nebraska, Byron Dorgan and Kent Conrad from North Dakota, and Tim Johnson from South Dakota.

These senators will jeopardize their seats if they vote to support an anti-gun radical for the Supreme Court. Second Amendment supporters will now be up in arms over this radical anti-Second Amendment nominee, and you should never underestimate the political power of American gun owners.

Ken Blackwell is a senior fellow with the American Civil Rights Union and the Family Research Council.
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Old May 27, 2009, 07:01 PM   #2
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Folks, if we discuss her theories on gun rights - that's OK. Let's not go down the low road as happened in the other thread about her. Stay on this topic - her views of gun rights.

Hint, hint!!
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Old May 27, 2009, 07:24 PM   #3
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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.
I'm freekin lost!!! The second amendment only applies to the limitations the federal government seeks to impose

Someone please explain how that means the 2nd doesn't apply to the states!?!?!?!

Are they saying that the constitution only applies to the Fed Gov and not the states!?!?
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Old May 27, 2009, 07:39 PM   #4
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She can't be any worse than Souter. It's a wash.

Who did you expect him to nominate? Wayne LaPierre?
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Old May 27, 2009, 09:11 PM   #5
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I'm freekin lost!!! The second amendment only applies to the limitations the federal government seeks to impose

Someone please explain how that means the 2nd doesn't apply to the states!?!?!?!

Are they saying that the constitution only applies to the Fed Gov and not the states!?!?
Yes. The legal theory behind this is, well...interesting to say the least, but the concept of applying Amendments 1-10 to the U.S. Constitution to the states is called incorporation. What has evolved over time is a doctrine called "selective incorporation", where only certain of the rights guaranteed by the Bill of Rights are incorporated to the states as well. The 2nd Amendment was never incorporated in this way, primarily because it was, at least until D.C. v. Heller, viewed not as a personal, but as a collective right. There was seen to be no need to incorporate collective rights against the states. There are current cases before the 2nd and 9th federal appellate circuits addressing this issue, one or more of which will undoubtedly reach the Supreme Court.
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Old May 27, 2009, 09:17 PM   #6
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According to Judge Breyer Souter Ginsberg Stevens Sotomayor, if your state or city bans all guns the way Washington, D.C. did, that’s okay under the Constitution.
There. Fixed it.
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Old May 27, 2009, 09:27 PM   #7
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The 2nd Amendment was never incorporated in this way, primarily because it was, at least until D.C. v. Heller, viewed not as a personal, but as a collective right.
So by precedence she was right in her opinion?
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Old May 27, 2009, 09:29 PM   #8
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She can't be any worse than Souter. It's a wash. Who did you expect him to nominate? Wayne LaPierre?
Bingo. It's still four against five. The balance doesn't change. What's more, she's taking the bench at a point when Ricci may be heard before the court. That places her in an...interesting position, since she ruled on it in the 2nd Circuit.

What if it gets overturned, as six out of her seven other decisions were when they reached the Court?

Methinks she's going to tread very carefully and very quietly.

And now back to our regular programming.
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Old May 27, 2009, 09:31 PM   #9
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So by precedence she was right in her opinion?
If so, it would be one of the few times.


Looks like she's qualified to me.
She's had 5 reversals out of 7 of her cases that went before the Supreme Court.
One case upheld, but her reasoning was cited unanimously as faulty.
One case pending.
Yep, sounds like she's qualified to me.

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

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Quote:
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)

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Old May 27, 2009, 10:37 PM   #10
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She's had 10 reversals out of 14 of her cases that went before the Supreme Court.
DonR101395: 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.
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Old May 27, 2009, 10:44 PM   #11
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I gotcha now. I read it wrong and will fix it.

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Old May 27, 2009, 10:59 PM   #12
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Someone please explain how that means the 2nd doesn't apply to the states!?!?!?!

Are they saying that the constitution only applies to the Fed Gov and not the states!?!?
The rights in the Bill of Rights only apply to the states if they have been "incorporated" by the courts under the 14th Amendment.

The "direct application" approach:
In the 1833 case Barron v. Baltimore, SCOTUS determined that the Bill of Rights limited the federal government and did not apply to the states.

The "privileges or immunities" approach:
The 14th Amendment was adopted in 1868 and prohibits states from abridging the "privileges or immunities" of US citizens. In the 1872 Slaughter-house cases, SCOTUS determined that "privileges or immunities" did not include the rights encompassed in the Bill of Rights.

The "due process" approach:
The 14th Amendment prohibits the states from depriving "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." In a series of cases, largely during the 20th century, SCOTUS determined that specific rights in the Bill of Rights were "incorporated" under the due process protections of the 14th Amendment.

The Second Amendment has not yet been "incorporated" and does not yet apply to the states.
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Old May 28, 2009, 12:50 AM   #13
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why not

Why hasnt the second ammend. been incorperated by the states. It seems that everything should be incorperated and not just selective ones.
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Old May 28, 2009, 01:04 AM   #14
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Why hasnt the second ammend. been incorperated by the states. It seems that everything should be incorperated and not just selective ones.
Before the Heller decision, the courts held the Second Amendment to be a "collective right" that applied to state militias (14A protects persons, not states). Only after the Heller decision declared that the Second Amendment guaranteed an individual right could the 14th Amendment be used to protect that individual right against state encroachment.

Give the system a little time to work. Several cases, such as the Chicago case, raising the incorporation issue were filed on the day the Heller decision was released or within a day or two thereafter. The Ninth Circuit has already ruled in favor of incorporation in Nordyke and it is only a matter of time before SCOTUS takes a 2A incorporation case to resolve the split between circuits on the issue.

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Old May 28, 2009, 05:24 AM   #15
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This/She is the same, from the President.

Her book The International Judge fits with Koh and the rest of the peaceful european world utopia big thinkers. America seems temporarily in the hands of the Workers Party, Union Party, Labor Party, People's Party...whatever name you want...and the gun policies are understood. She should fit in. Political poison for congress to enact firearms or legislation? Then there has to be another way. Oh well...hopefully no one is surprised. 2a rights will eventually be superceded by only paying attention to clear-cut 2a issues.

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Old May 28, 2009, 05:58 AM   #16
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What's more, she's taking the bench at a point when Ricci may be heard before the court. That places her in an...interesting position, since she ruled on it in the 2nd Circuit.
I believe that in such an event, the Justice recuses themselves from the hearing case.
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Old May 28, 2009, 06:18 AM   #17
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Why hasnt the second ammend. been incorperated by the states. It seems that everything should be incorperated and not just selective ones.
The idea is that citizens of the United States and citizens of a State in the Union are not one and the same, and each "flavor" of citizenship carries certain rights.

Slaughterhouse Cases

Cruikshank

Presser

Quote:
Originally Posted by SCOTUS in Presser
But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
That has never been overturned, and it is the Supreme Court that should do the overturning of their own ruling. Appeals Court judges should not overturn the Supreme Court. She was right to observe that the precedent exists and is controlling until the SC says otherwise, and they have not. Yet.
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Old May 28, 2009, 06:25 AM   #18
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I believe that in such an event, the Justice recuses themselves from the hearing case.
They heard the case last month and will decide it before the Senate finishes talking about her. Talk I have heard says the decision will be reversed, which will be embarrassing for her and Obama, but it is a non-issue as far as her potential conflict of interest. Even if the case were not decided before she arrived, she would recuse herself.
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Old May 28, 2009, 07:16 AM   #19
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If the Family Research Council is against her, then I'm for her. But nobody has asked me.
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Old May 28, 2009, 07:24 AM   #20
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That has never been overturned, and it is the Supreme Court that should do the overturning of their own ruling. Appeals Court judges should not overturn the Supreme Court. She was right to observe that the precedent exists and is controlling until the SC says otherwise, and they have not.
I disagree. The ruling in question was made prior to the doctrine of selective incorporation through due process. As a result, there are two roads of "precedent" that can be followed to apply the Second Amendment to the States.

One is via the privileges and immunities clause - the Supreme Court has effectively said no to this in Presser, although it is a decision right up there with Dred Scott for bad decisions enshrining racism in our government. To the extent, Sotomayor relied on this precedent, she is correct that it is up to the Supreme Court to correct its own errors.

The second route is selective incorporation through due process - and the Supreme Court has not said anything as this relates to the Second. In fact, if you look at the ways it has been applied to the other amendments, the arguments that it applies to the Second are overwhelmningly compelling (which is why even the liberal 9th Circuit reached that conclusion).

Sotomayor was completely within the realm of her responsibilities to address the issue of selective incorporation through due process in this opinion and chose not to do so. Admittedly, the lawyer in Maloney just barely touched on the subject and in that light, you can make a fair argument that Sotomayor shouldn't be suggesting or ruling on arguments that the other side can't think up on its own - and if Sotomayor had adhered to that in her other decisions, then I would grudgingly concede the point; but she seems more willing to stray from that line when plaintiffs she agrees with come before the court.

gc70 mentioned in the other thread that he considered addressing questions not before the Court as a form of judicial activism and cited how SCOTUS did not address the issue in Heller even though they recognized it (much like the Second Circuit's decision in Maloney).

To me the difference is that Heller was carefully crafted to AVOID that very question. That was the whole purpose of challenging the law in the federal enclave of D.C. The lawyers in Heller recognized that it could easily become an issue the Supreme Court would address if they didn't do everything in their power to make it inapplicable in that one case.

The opposite happened in Maloney. Maloney deliberately brought up the issue of incorporation through due process in its brief to the Second (albeit in a brief and haphazard way; but they did at least throw it in there at the last minute).

Having said that, Sotomayor's decision may end up helping us more than hurting us when it goes to SCOTUS just because of the paucity of scholarship or legal support in the decision.
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Old May 28, 2009, 07:29 AM   #21
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Her book The International Judge fits with Koh and the rest of the peaceful european world utopia big thinkers.
Sotomayor did not write The International Judge; she wrote the foreword for the book.
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Old May 28, 2009, 07:56 AM   #22
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There's a lot troubling about Sotomayor. Her attitude about the second amendment being a big one.

Especially combined with this attitude. - http://www.youtube.com/watch?v=OfC99LrrM2Q
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Old May 28, 2009, 08:40 AM   #23
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you can make a fair argument that Sotomayor shouldn't be suggesting or ruling on arguments that the other side can't think up on its own - and if Sotomayor had adhered to that in her other decisions, then I would grudgingly concede the point; but she seems more willing to stray from that line when plaintiffs she agrees with come before the court
This is one of my biggest concerns with any Supreme Court Justice. Judges should interpret the law to decide questions posed to the court and not create solutions to help the side with which they agree.

I am still reading Sotomayor's decisions, but links to source documents evidencing judicial activism would be greatly appreciated.
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Old May 28, 2009, 08:59 AM   #24
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CNN posted an interesting article reporting that a factor in Sotomayor's selection was the potential for her to sway Kennedy's vote.

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Contrary to conventional wisdom, President Obama was not looking for someone to balance the more flamboyant conservative firepower of Justice Antonin Scalia, according to one senior administration official involved in the process of picking, vetting and promoting the nomination of Judge Sonia Sotomayor.

He was looking for someone with the ability to win over Justice Anthony Kennedy, the crucial swing vote.
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Old May 28, 2009, 09:34 AM   #25
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I am still reading Sotomayor's decisions, but links to source documents evidencing judicial activism would be greatly appreciated.
Didn't Sotomayor pretty much say as much herself in the controversial statements now making the rounds?

Quote:
He was looking for someone with the ability to win over Justice Anthony Kennedy, the crucial swing vote.
Hmmm, well if Jeffrey Rosen at The New Republic is reporting correctly, then Sotomayor is probably not that person.

Considering that TNR is a prominent liberal magazine and that both of those were made pre-nomination when Sotomayor was just on the short-list, I guess that means that either they really think she isn't qualified or that they preferred a more liberal judge than Sotomayor for the position. Either way, Rosen got roasted pretty well by his compatriots even before Sotomayor's nomination was announced.
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