Source: Daniel John Sobieski
Before Sonia Sotomayor, the “wise Latina” as she once referred to herself, was nominated by President Barack Hussein Obama in May 2009 and confirmed as Supreme Court justice that August, her legal expertise and judgment were being questioned by those noting her high reversal rate by the court she was being elevated to:
Three of the five majority opinions written by Judge Sotomayor for the 2nd Circuit Court of Appeals and reviewed by the Supreme Court were reversed, providing a potent line of attack raised by opponents Tuesday after President Obama announced he will nominate the 54-year-old Hispanic woman to the high court.
“Her high reversal rate alone should be enough for us to pause and take a good look at her record. Frankly, it is the Senate’s duty to do so,” said Wendy Wright, president of Concerned Women for America.
Well, the Senate gave her a pass, with Sen. Lindsey Graham, who mentions it frequently, being the sole Republican on the Senate Judiciary Committee voting to advance her nomination to the full Senate for a vote. Not giving her a pass these days is Sen. Ted Cruz (R-Texas), who has noted the double standard and bad law she applied in criticizing colleagues Neil Gorsuch and Brett Kavanaugh for essentially being “Trump judges” by fighting the incessant lower court injunctions applied nationally to block President Trump’s policies and what the American people elected him to do, as reported in Texas Lawyer magazine :
Sen. Ted Cruz used Tuesday’s Senate Judiciary Committee hearing on universal injunctions to criticize Justice Sonia Sotomayor for her dissent, accusing a “handful of judges” as acting as part of the “resistance movement” against the Trump administration in blocking its policies.
He compared her opinion, which he noted no other justices signed onto, to “an arsonist complaining about the noise from the fire trucks.”
Sotomayor last week chided the Trump administration for repeatedly coming to the U.S. Supreme Court seeking stays on district court injunctions.
“It is hard to say what is more troubling: that the government would seek this extraordinary relief seemingly as a matter of course, or that the court would grant it,” she wrote.
Restraining activist judges who apply ideology over law on a scope outside the jurisdiction of the cases at hand is not “extraordinary” relief. It is welcome relief and reflects President Trump’s reshaping of the federal courts, a work in process, and restoring them to their originalist origins and interpretations, written in an era when the Constitution meant what the Founders wrote in the context of their times, not what a “wise Latina’ in touch with her life experience and feelings might say it means, colored by the passions of the day.
Supreme Court Justice Neil Gorsuch, a “Trump judge” according to Sotomayor, condemned activist judges exceeding the scope of their legal authority in a January concurrence. Gorsuch scolded lower courts that have routinely issued blanket injunctions against the Trump administration, rather than limiting themselves to the parties before them:
But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.
Sotomayor is the legacy of the post-Bork era when Democrats realized that they could bypass the cumbersome legislative process still tied to that inconvenient “consent of the people” thing by concentrating on the courts and populating it with judges who believed in the “living constitution,” which was to be interpreted in the context of the times inflamed by public passions and the liberal cause du jour.
Original intent was an anachronism.
Sotomayor had no problem when Obama lectured the Supreme Court on its “wrong decision” in Citizens United vs. FEC during the 2010 State of the Union.
Sotomayor sat quietly through Obama’s State of the Union address when Obama sharply attacked Supreme Court justices sitting in the audience for their ruling in the Citizens United case, which allowed unlimited political campaign contributions by unions and corporations.
President Obama falsely claimed in this speech that the Citizens United ruling allowed massive political contributions by foreign corporations. It did no such thing.
As the justices sat in the House chamber listening to his speech, Obama embarrassed the court directly and fiercely. Not a peep from Sotomayor. Only Justice Samuel Alito quietly mouthed to himself “Not true,” as Obama railed against foreign campaign contributions. Sotomayor has said nothing about Obama’s remarks in the years since.
With a Senate cowered by political considerations and the passions of the moment, we got Anthony Kennedy’s America, a land of weather-vane SCOTUS decisions and coat-hangers continuing to be beaten into scalpels. Thanks to President Trump, who realized the Supreme Court was and still is a political arena, at least for those who confirm SCOTUS picks, the appointments of Gorsuch and Kavanaugh have shifted SCOTUS back in an originalist direction. Are they “Trump” justices per se? Perhaps not, but they share his views on the role and limitations of the Supreme Court.
It took Cruz just two minutes during the hearing to reduce Sotomayor’s protest to a pile of politically motivated babble:
If you look at the facts of what’s happening with nationwide injunctions, I think it will explain why the DOJ has had to ask the Supreme Court to intervene over and over and over again.
Nearly one-third of the nationwide injunctions issued against the Trump Administration have come from courts in the state of California. Two-thirds of the states, their district courts have issued a total of zero nationwide injunctions. So you have a handful of courts that are driving this problem.
Cruz then offered Sotomayor the facts showing how judges have been enlisted in the anti-Trump “resistance” to thwart the will of the American people:
“In the eight years of the George W. Bush administration, district courts issued a total of 12 universal injunctions against the Bush administration,” he said. “In the eight years of the Obama administration, district courts issued 19 universal injunctions against the Obama administration. In just three years of the Trump administration, we have already had 55 national universal injunctions issued against the federal government.”
That breaks down to 1.5 injunctions per year under Bush, 2.4 injunctions per year under Obama and 18.3 injunctions per year. And liberals like Sotomayor like to lecture us on “disparate outcomes.” How’s that, Justice Sotomayor, for equal treatment under the law?
One suspects that Sotomayor’s angst goes beyond just injunction relief, but rather that her eyes, like those of other members of the “resistance,” are on the November 3 election. She knows that Trump is reshaping the courts from a liberal activist bludgeon to an originalist protector of the Constitution and the law:
The good news in the last three years is that, according to the Washington Post, one out of every four U.S. circuit court judges is a Trump nominee. Thirteen district court judges are Trump nominees. And two Supreme Court Justices are Trump nominees. That’s total of 187 U.S. judges. And with one year left in his first term, that number is sure to climb.
If the President wins re-election, which is more likely than not, and Republicans can keep their Senate majority, another 200+ judges could be replaced with Trump nominees and hopefully, one of those will be Justice Ruth Bader Ginsburg. This would be the dream scenario and if it ever came to pass, its impact would be felt for years to come.
That is what Sotomayor really finds troubling. And there is no court injunction that will prevent the American people from making it so.