Tuesday, May 26, 2009

Split decision: Sonia Sotomayor

Pres. Barack Obama's nomination of U.S. Court of Appeals Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter is sound, historic and doesn't deserve the kind of reflexive opposition we're seeing from desperately opportunistic conservatives.

Both Sotomayor and Souter are respected jurists, both left-leaning moderates (or damned liberals, depending). It'd be naive (and mistaken) to say with certainty that each would rule the same way on a given case, but it's reasonable to predict that Sotomayor, if she's confirmed, won't do much to change the left-right balance of the Supreme Court.

Now let's get a few more things straight. First, despite right-wing fear mongering, no, she's not likely to become a dreaded "activist judge." And while Republicans are reminding us that "elections have consequences," they might want to consider that Sonia Sotomayor is exactly the kind of nominee we would've seen from John McCain.

Second, a jurist incorporating background and personal experiences into their interpretation of the law isn't a cardinal sin -- on the contrary, I believe it's both absolutely essential and incontrovertibly human. If that weren't so, we'd see a whole lot more 9-0 decisions.

Third, there's no such thing as the most qualified choice. It's a patently foolish assertion. Anyone who contends otherwise has either an ideological blind spot or a job in politics.

And finally, although the Supreme Court isn't a representative branch of government, I prefer a government that looks like The People it serves. In that light, here's what CNN's Jeffrey Toobin, author of The Nine, said after Pres. Obama made his announcement this morning:

"That was the face of the new America. You know, there have been 111 Supreme Court justices -- 107 of them have been white men. There have been 44 presidents -- 43 of them have been white men.

"But here you have our first African-American president, the first, potentially, Hispanic woman on the Supreme Court. This is not how America used to look, and America's changing."

A disturbingly large number of Americans -- most of them white, male, conservative or with a mailing address south of the Mason-Dixon line (or all of the above) -- have a problem with "the new America." I don't.

The Senate probably will confirm Sotomayor, so the appointment is what it is -- one left-of-center justice replacing another, albeit this time a woman who adds a much-needed splash of brown to the high court. If I have a concern, naturally it's on the subject of Second Amendment rights.

It's a rare day when I agree with Ken Blackwell, the former Ohio Secretary of State and unsuccessful Republican candidate for governor. Blackwell may be one of those desperately opportunistic conservatives, but he's right when he says,
"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."
Last June, in D.C. v. Heller, the U.S. Supreme Court ruled that the District of Columbia's oppressive ban on handguns violated individual citizens' right to keep and bear arms. Just over seven months later, the U.S. Court of Appeals for the Second Circuit ruled in Maloney v. Cuomo that the Second Amendment doesn't apply to the states -- and, by extension, it doesn't apply to cities or counties, either.

Writing for the Appeals Court and citing an 1886 Supreme Court ruling, Sotomayor said that "the Second Amendment applies only to limitations the federal government seeks to impose” and that Heller "does not invalidate this longstanding principle."

It'll surprise many Second Amendment advocates to learn that Sotomayor is correct, at least in terms of "settled law." It has to do with the Fourteenth Amendment and something called incorporation doctrine, which the Court didn't address in Heller simply because it wasn't part of the case. Blackwell again:
"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."
I'm not a lawyer, a judge or a constitutional scholar, but as a citizen I say that this "settled law" reflects neither the letter nor the spirit of the Constitution. Fortunately, the NRA (et al) continues to press the fight for incorporation, notching a big win last month when the Ninth Circuit Court of Appeals ruled that the Second Amendment protects the right to keep and bear arms for all law-abiding Americans.

Sonia Sotomayor will get her seat on the high court, deservedly so. Her very presence, however, along with the status quo, should serve as reminders that gun owners have much work to do and difficult days ahead.