The Chaos of Obama's Supreme Court Philosophy & Sonia Sotomayor

By now, most everyone knows that Sonia Sotomayor is Obama's pick to replace Justice Souter on the Supreme Court. Prior to making that decision, he had gone on record as saying that he wanted someone with "life experience" and "empathy." Sotomayor, herself, is on record as saying that see believes that, in the appeals court, policy is made from the bench (See Video).

Now, I realize that Obama hold's a law degree with an emphasis on constitutional law and, by all educational measures, is supposed to be a smart guy. However, this "empathy" and "life experience" qualification flies in the face of what the Supreme Court is all about; and, for that matter, what any judge in any court in our legal system is all about.

Obama preaches to us about the "Rule of Law" whenever he talks about torture. But, with his Supreme Court pick, he literally intends to leave the "Rule of Law" at the Supreme Court's door. That's because he believes and wants a legal system that isn't just based on the law but, now, should be muddied up with personal "empathy" and "life experiences"; and, in doing so, he is literally advocating a law practice that isn't being based on any actual "written" laws at all. His philosophy would be legal chaos with each judge making up their own "Rule of Law" as they go.

It means that the laws of this country would all be subject to personal opinion and not "to" the actual legislative construction and intent that went into the passage of that law. In essence, this philosophy means that the very same law could be "twisted" or "shaped" to conform to a Justice's personal opinion or desires. From one court room to another, as each judge individually decides to insert their empathy or their past into each of their decisions, people would absolutely "not" receive equal protection under the law. Again, the chaos would be the "unequal" protection of your rights. In theory, a white person in a Hispanic judge's courtroom could be unfairly disadvantaged. A black in a white judge's court similarly hurt. This is why our symbol of American justice is the goddess Themis, the goddess of justice, who is blindfolded holding a set of scales. Where "empathy" and "life experience" have actually been injected in a court decision, the results have been disastrous. In case after case where the judge has overridden the law with his own "empathy" or personal opinion, we have had killers, rapists, pedophiles etc. who have been let go; only to commit the same crimes over again.

No one should ever go to a court in this country feeling that -- because of their ethnicity, gender, or their station in life -- they will be treated differently under the law; depending on the judge. If this twisted philosophy of Obama's is promulgated, complete legal anarchy would ensue. You might as well have a "kangaroo" sitting on every bench. For a sitting President -- for that matter any President -- to condone this kind of biased judicial activism is, in my opinion, a violation of their oath to "protect and defend the Constitution of the United States." For any new Supreme Court Justice to take their oath of office, knowing full well that they will violate the words of that oath that say "I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God" is, too, a disgrace to our Constitution. But this is to be expected from Obama and his collective gang. This is an Administration that has literally backdoored and undermined the Constitution by dictating executive pay; overriding our own bankruptcy laws in the case of GM and Chrysler; the government ownership of private business; new mileage standards without Congressional approval; and, so much more.

Cases rise to the level of the Supreme Court because they have some direct bearing on the settlement of the law as it pertains to the Constitution and the Bill of Rights. Fights over money owed for a box of donuts or because of some property line dispute (as two examples) would never achieve the level of a Supreme Court decision unless the Constitution was being challenged in some way.

Nowhere else in our court system should justice be more "blind" than in the Supreme Court. All too often, the lower courts make decisions on the basis of "empathy" or with a bias based on their own "life experiences" and, all too often, in favor of the well connected or wealthy or in favor of the downtrodden over the wealthy. There is no place for these kinds of decisions at the Supreme Court level. The decisions of the highest court of this land are the most critical decisions affecting our country because they can have an effect on "all" the people. It is truly the last bastion where "equal justice under the law" exists. The Supreme Court is no place for "empathetic" justice under the law or justice based upon some Judge's own beliefs or one that is being swayed by their own personal or "life experience" because their life experience and their empathy many not coincide with those who are actually being affected by their decision.

Sonia Sotomayor's biggest fault, as shown in the video (above), is her apparent belief that the appeals court sets "policy" or should override the law by changing the law from the bench. Her statement is in direct contradiction to the "balance of power" as defined by our Constitution. In terms of Federal law, the Congress makes the law. The President can either agree with it (by signing it) or send it back to Congress with a veto. The Congress can override a veto with a 2/3 majority vote. Once passed into law, it is the Court System and, ultimately, the Supreme Court who makes the decision if that law, the law that was enacted by the Congress, is Constitutional. If not, the courts only choice is to give an opinion and negate the law. This, then, will force the Congress to modify that law or policy to conform to the Constitution. It is not the responsibility, under the limits of the Constitution, for the Supreme Court to rewrite that law from the bench.

Make no mistake, the selection of Sonia Sotomayor is an ideological pick on the part of Obama. Don't ever think that Obama -- being the farthest left President we've ever had in this country -- is making some kind of "centrist" decision in order to elevate a Hispanic woman to the Supreme Court. In terms of Sotomayor's past decisions as being ultimately weighed by the Supreme Court, she has, in 60% of the cases forwarded to the Supreme Court, been reversed by that top court (See Full Story). As a result, she has proven herself to be out of step with the Constitution in too many of her lower court decisions. Her latest decision, a case of reverse discrimination known as the New Haven Firefighter's Case (See this commentary) is now pending in the Supreme Court and, it too, is another Sotomayer decision that is expected to be reversed. From every appearance, the New Haven case looks as if Ms. Sotomayor was very much "empathetic" towards race and not judicial fairness in her decision. Even a liberal colleague, Judge Cabranes, on the 2nd Court of Appeals (where Sotomayor currently sits) was critical of her handling of this case.

Those on the left are thwarting any criticism of Sotomayor by the conservative right by implying that any objections will be seen as the "usual" racism and anti-Hispanic posturing by Republicans. They also want Sotomayor to be elevated to this country's highest court because of her "compelling life story" -- as if that, and that alone, is the sole criteria for sitting on the Supreme Court. Additionally, the "first" Hispanic is being tossed around as the rationale for automatic approval. That may work fine for the Guinness book of records -- but not for deciding on a Supreme Court justice.

When it is all said and done, Obama will get this pick. The Democratic dominated Congress and our left wing national media will bury any facts that might say otherwise. The Republicans have been emasculated in this process by Obama smartly picking a female Hispanic; thus throwing water, beforehand, on any real criticism of Sotomayor for the job. But, strategically, the Republican members of Congress should keep their powder dry and allow the right wing groups and talk radio to take Sotomayor to task. The Republican Senators that will decide on her fate should expose her weakness as a justice and not ever as a Hispanic woman. If bad decisions were made while sitting on the bench, then those faults should be exposed. If, after sitting on the high court, she continues to make faulty decisions, those decisions can be used in the 2010 and 2012 elections against Obama and the Democrats.

The real issue isn't about Sotomayor, herself. Sotomayor is who she is. More importantly, it is all about who picked her and who put her on the bench. Do you think a orchard owner would look at a basket of bad fruit and, then, blame the fruit for being bad? Not hardly. Rather, he would appropriately blame the person that picked that basket of fruit. Sotomayer is just the bad fruit and the real blame for her appointment lies with Obama and the Democrats who voted for her.