Justice Sotomayor – Exhibit One, Liberal Intemperance

Posted on Friday, January 14, 2022
by AMAC, Robert B. Charles

Meantime, the ones who might be questioned closely on “judicial temperament” are those who trip and fail to separate their political and judicial philosophies, you might say judicially “shooting before they think.” Sotomayor is exhibit one.

One of the canards lofted to defeat judicial conservatives facing Senate confirmation is “judicial temperament.” Putting aside the irony, that catch-all allows congressional antagonists to bait a nominee, without specifics. How ironic then, that Justice Sotomayor just proved the point.

Last week, in arguments before the High Court on Biden’s highly questionable mandate on private businesses, in effect forcing employees to undergo involuntary vaccination or frequent testing by threatening OSHA punishment of their employer, the esteemed Justice proved the adage.

The adage that comes to mind is that silence allows people to presume the best of you, while speaking might cause them to question your logic – or “judicial temperament.” As Mark Twain once quipped, “It is better to keep your mouth shut and appear stupid,” or even smart, “…than to open it and remove all doubt.” 

So, what did Justice Sotomayor just do? This justice, while a role model in some ways, has repeatedly shown that her political philosophy – not her judicial one or temperament – governs her thinking, and she often missteps, suggesting questions about other justices should be kept in perspective.

This is a justice who spurred racism questions with her pre-nomination praise for the “wise” Hispanic woman over the “white male,” who has subsequently been one of the most vocal, visceral, unreserved, and some might say intemperate voices to sit on the High Court. Her dissents are often stingingly political.

Donald Trump’s extension of the Obama era policy, with congressional direction, of vetting travelers to the US from high-risk countries, dubbed a travel ban on Muslim countries, spawned a harsh dissent. Said the left-leaning justice, she bluntly – and without basis – tagged him as pushing “anti-Muslim animus.”

That was in 2018, only to be followed by a string of “out there” dissents, including one that compared state laws enforcing capital punishment to being “burned at the stake,” another that dissed the High Court when a state university ban on racial preferences was upheld, lecturing the Chief Justice on racial discrimination. See, e.g., ‘The People’s Justice’: After decade on Supreme Court, Sonia Sotomayor is most outspoken on bench and off.

Then she wrote a variety of anti-police opinions against GPS tracking, saying police “shoot first and think later,” and added other colorful language. When evaluating states’ rights to assure transparent or accountable elections, she seethed states just aim to purge registration of “minority, low income, disabled, and veteran voters.” The statement was objectively absurd, and she offered no proof or logic.

Then, while absolving or remaining silent on liberal states redistricting plans, she castigated a conservative state for executing a similar redistricting plan, based on a process not unlike others.

In a recent term, she conjured up what can only be described as a fanciful Court conspiracy, saying that the conservative majority was involved in pushing a “shadow docket” that did not adhere to a left-leaning agenda. What did she mean? Apparently, she did not like how oral arguments were scheduled.

Finally, she has run her mouth at times and in places that lead one to wonder, even if a supporter of her political views, whether she is exercising that vaunted “judicial temperament” to which conservatives are supposed to leave.

The latest, however, is embarrassing, the sort of bold misstatement – and from the bench – that leads an observer, of any political stripe, to put his or her head in hands. Last week, in what seems to have been off-script, off-prep, off-road judicial freelancing, she leveled politically tinged accusations.

Favoring more federal control, innately anti-state’s rights, she created a squall of affected hysteria and just let fly. Her words echoed in the courtroom apparently, like an admission against interest.

What she said was that “hospitals … are almost at full capacity with people severely ill on ventilators,” and “we have over 100,000 children, which we’ve never had before, in serious condition, many on ventilators.”

Facts are somewhat different, actually entirely different, even referencing the Centers for Disease Control (CDC), taking the best possible interpretation of what was said by the esteemed justice.

While Omicron is highly transmissible, the severity of the virus appears a fraction of past iterations. As major media have reported, “younger people are at far less risk … of severe outcomes,” and the facts uttered are drawn from the ether – nothing supports the bold-faced statement.

Did that stop this liberal, activist justice from carrying on? Did a correction swiftly issue? Was a response to the obvious misstatement – and prejudicial one – of a central, even dispositive fact get made? Is there any sense of embarrassment that a justice is making decisions on faulty, made-up information? Answer:  No.

All this returns us to the opening issue. When people talk blithely of “judicial temperament,” one is well advised to think about who sits on the bench, how they behave, what wing of the court tends to showcase the opposite.

More could be said, but perhaps the best reflection on this topic is that those of conservative temperament tend to speak with deliberation, in effect, from a personal nature that is more temperate – not always, but often. 

Meantime, the ones who might be questioned closely on “judicial temperament” are those who trip and fail to separate their political and judicial philosophies, you might say judicially “shooting before they think.” Sotomayor is exhibit one.

URL : https://amac.us/newsline/national-security/justice-sotomayor-exhibit-one-liberal-intemperance/