Michael Gaynor
Pretense triumphed, not judicial conservatism
By Michael Gaynor
January 1, 2010

We need clarity, not spin, especially when pretense is triumphing.

Edward Whelan, president of the Ethics and Public Policy Center and regular contributor to National Review Online's Bench Memos blog, characterized the confirmation of Justice Sonia Sotomayor as "the political triumph of judicial conservatism."

It really was the political triumph of pretense.

Whelan (http://article.nationalreview.com/?q=OGM4YmM4YjZmY2ZjZGEzMjEzMDNlNDA2ZWEyZjQ1ZmI=):

"In the realm of the courts, the most important lesson from 2009 is the political triumph of judicial conservatism.

"When President Obama nominated Sonia Sotomayor to the Supreme Court, all the elements seemed to be in place for an exhilarating triumph for the Left:

  • A charismatic president who trumpeted the role of empathy in judicial decision-making.

  • A 'wise Latina' nominee with a genuinely inspiring life story and strong ties to the left-wing 'public interest' community.

  • An overwhelming Democratic majority in the Senate.

  • A sympathetic media.

"But the confirmation process instead demoralized and disgusted many on the left, as Sotomayor, in close consultation with the White House, tried to disguise herself as a judicial conservative. 'The task of a judge is not to make law, it is to apply the law,' she averred. Judges are 'like umpires,' she said. She pretended to walk away from her support for freewheeling resort to foreign and international legal materials. And, perhaps most strikingly, she emphatically repudiated Obama's own empathy standard.

"The White House politicos advising Sotomayor understood what polling confirms: The American people overwhelmingly embrace the traditional understanding of the judicial role and reject liberal judicial activism."

If that's a triumph of judicial conservatism, it's a hollow one, because Justice Sotomayor ended up with a lifetime appointment to the United States Supreme Court and she's NOT really a judicial conservative (or else she would not have been nominated).

I don't expect Justice Sotomayor to function as a judicial conservative and I'm not impressed with lip service.

Whelan put lipstick on a pig.

We need clarity, not spin, especially when pretense is triumphing as the Age of Obama proceeds.

I agree with Whelan that Justice Sotomayor "pretended to walk away from her support for freewheeling resort to foreign and international legal materials" during her confirmation hearing.

I think that reality is that Justice Sotomayor followed the Obama example and the Obama administration advice and pretended to be what she really is not (judicially conservative) in order to be confirmed.

Success depends upon how the issue is framed.

Obama won the Presidency by making the issue whether America should accept a soft-spoken, seemingly benign half-black, half-white man posing as a post-racial candidate as President of the United States.

But Obama was not what he and the liberal media establishment made him seem.

In Justice Sotomayor's case, the issue was whether a Latina born in poverty should be accepted as a United States Supreme Court Justice.

Justice Sotomayor's "genuinely inspiring life story" outweighed her discrimination in favor of black firefighters and involvement with radical La Raza (even as a federal judge).

If judicial conservatism really had triumphed in 2009, David Hamilton would not have been nominated, much less confirmed by a vote of 59-39 to fill a vacancy in Chicago-based U.S. Court of Appeals for the Seventh Circuit.

© Michael Gaynor


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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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