Sonia Sotomayor on Gun Rights and Racial Preferences

Why libertarians—and everyone who believes in limited government—should worry about Barack Obama's Supreme Court nominee

President Barack Obama's announcement that he wants federal appeals court Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter comes as something less than a shock. For months, Sotomayor's name has topped most lists of potential candidates. With her compelling personal story, which stretches from a Bronx, New York housing project to Yale Law School to the federal Second Circuit Court of Appeals, Sotomayor's likely appointment as the Court's first Hispanic justice nicely complements Obama's own "only in America" narrative.

But when it comes to her judicial philosophy, there are some real causes for concern. In particular, on the hot-button issues of affirmative action and Second Amendment rights, her record suggests a decidedly illiberal vision of constitutional law.

Consider affirmative action. Last month, the Supreme Court heard oral arguments in the case of Ricci v. Destefano, which centered on charges of reverse discrimination at the New Haven, Connecticut fire department. In 2003 the department administered a test to fill 15 captain and lieutenant vacancies, but when the results came in, no African Americans made the cut (14 whites and one Hispanic earned the top scores). In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work.

Ricci's suit was initially thrown out at the district court level, prompting an appeal to the Second Circuit. At that point Sotomayor joined in an unsigned opinion embracing the district court's analysis without offering any analysis of its own. This prompted fellow Second Circuit Judge Jose Cabranes—a liberal Democrat appointed by President Bill Clinton—to issue a stern rebuke. "The opinion contains no reference whatsoever to the constitutional claims at the core of this case," Cabranes wrote. "This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

It's an important point. Ricci gets at the very heart of the debate over whether the Constitution should be interpreted as a colorblind document. As the liberal legal commenter Emily Bazelon noted at Slate, "If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes' ire, and he hung a big red flag on the case, which the Supreme Court grabbed." Given that the Court is likely to side with Ricci and his fellow plaintiffs, Sotomayor's silent endorsement of New Haven's reverse discrimination is certain to come back to haunt her during her confirmation hearings.

Equally troubling is Sotomayor's record on the Second Amendment. This past January, the Second Circuit issued its opinion in Maloney v. Cuomo, which Sotomayor joined, ruling that the Second Amendment does not apply against state and local governments. At issue was a New York ban on various weapons, including nunchucks. After last year's District of Columbia v. Heller, which struck down DC's handgun ban, attention turned to whether state and local gun control laws might violate the Second Amendment as well.

"It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right." But contrast that with the Ninth Circuit's decision last month in Nordyke v. King, which reached a very different conclusion, one that matches the Second Amendment's text, original meaning, and history:

We therefore conclude that the right to keep and bear arms is "deeply rooted in this Nation's history and tradition." Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the "true palladium of liberty." Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

This split between the two circuits means that the Supreme Court is almost certain to take up the question in the near future. What role might soon-to-be Justice Sotomayor play? As gun rights scholar and Independence Institute Research Director Dave Kopel told me via email, Sotomayor's opinions "demonstrate a profound hostility to Second Amendment rights. If we follow Senator Obama's principle that Senators should vote against judges whose views on legal issues are harmful, then it is hard to see how someone who supports Second Amendment rights could vote to confirm Sonia Sotomayor."

As a respected jurist with an impressive legal resume, Sotomayor appears just as qualified to sit on the Supreme Court as any recent nominee. But from the standpoint of individual liberty and limited constitutional government, there are significant reasons to be wary of her nomination.

Damon W. Root is a Reason associate editor.

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  • ||

    New at Reason: Damon W. Root on Why Libertarians-and anyone who favors limited government-Should Be Worried About [anyone Obama nominates], President Obama's Supreme Court Nominee

    FTFY

  • JB||

    She is bad on guns...

    I swear the Obama administration is basing all policy on what would piss me off the most (maybe they are bugging my apartment).

  • ||

    Seems like everyday there is a new reason "why libertarians - and anyone who favors limited gov't - should be worried." It's getting very depressing...

  • Craig||

    ...Sotomayor appears just as qualified to sit on the Supreme Court as any recent nominee.

    I believe this would qualify as "damning with faint praise."

  • NP||

    Faint praise is an oxymoron.

  • wayne||

    Thank you Lord Obama.

  • ed||

    Still waiting for one--just one!--cable-news "analyst" or "political strategist" or semi-competent "journalist" to ask the following questions: Does an American's rights under the U.S. Constitution depend on his race or gender? Is it acceptable for a justice to rule on cases based on his race or gender? Isn't it collectivist at best and racist at worst for any identifiable group to wish to be treated and judged according to their genetic attributes?

  • Mad Max||

    I wish I could find a principled interpretation of the Fourteenth Amendment which made affirmative action unconstitutional, but I don't believe I can. In fact, I can't find a principled interpretation of the Fourteenth Amendment which would allow the federal government to review the hiring decisions of state and local governments.

    But fortunately, the Supreme Court has rejected the kind of originalist analysis I would prefer when it comes to the US Constitution. Instead, they want to go with what's fair. So be it - affirmative action is the opposite of fair, so let it be struck down!

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  • TWJ||

    Mad Max:

    Due process simply means that the same rules must apply to everyone. The fourteenth amendment applies due process to the states, so the rules of every government agency (as well as laws) must comply with the due process clause.

    A principled interpretation holds that the constitution does not bar affirmative action (or any form of discrimination) among private parties.

  • ||

    What is the difference between the liberal arguments of today concerning race and the arguments made by white segregationist of the past? I don't see a difference. They are all racist.

  • ||

    No one with half a brain expected Obama to nominate a justice who respects the Constitution and Bill Of Rights.

    No one with half a brain expects the GOP to mount an opposition to Obama's nominee.

    The court's makeup won't change, she'll simply pick up where Souter left off.

    The real bummer is this;

    Souter was getting old and might have dropped dead and been replaced by a better justice.

    This bitch is 54 and likely to be around for a while.

  • ||

    There is at least some cause for Reason.com/Libertopian celebration.

    Sotomayor will certainly agree with you on amnesty, welfare eligibility and a Democrat party voter registration card for 30 million illegal alien wetbacks, their anchor babies and millions of their aunts, uncles, cousins etc.

  • MNG||

    She will be the same as a GOP nominee or any other Democratic nominee. On some issues she will be bad for libertarians (guns, eminent domain). On others she will probably be pretty good (rights of the accused).

  • Sweet Spot||

    I don't like her any more than anyone else, but it's not my pick. I just hope that our elected officials follow the law and judge her on her qualifications and not her political stances.

    That's why we vote for the right elected officials. We can do something about them - yes we can!

  • ||

    What is the difference between the liberal arguments of today concerning race and the arguments made by white segregationist of the past? I don't see a difference.

    TomT, the white segregationist of the past argued that whites deserved privileged treatment because the white race was inherently superior. Most of the liberal arguments of today concerning race that I hear are that people of color sometimes deserve privileged treatment because centuries of disparate privilege granted to the white race leaves others with disadvantages that can only be redressed by government intervention.

    I don't think you have to agree with the liberal argument to see the difference. (Or another difference: white segregationist were demanding privilege for themselves; many liberal proponents of affirmative action are members of groups who would not benefit from it.)

  • ||

    That's why we vote for the right elected officials. We can do something about them - yes we can!

    Anyone who runs for office is not the "right" official. All we can hope for is that they are the least of the awful choices.

  • MNG||

    "I wish I could find a principled interpretation of the Fourteenth Amendment which made affirmative action unconstitutional, but I don't believe I can."

    You probably would have a hard time with an originalist philosophy, but if you don't think the interpretation should be ruled by the original expectations of the lawmakers (how they expected applications would work itself out) and instead focused on the original meanings of the actual words used, then you'd be OK (after all, it does say "equal protection").

  • Rob Claus||

    Damon Root,

    Please stop using the phrase "reverse discrimination". What the city of New Haven did is discrimination, based on race. There is no need to use the word "reverse".

  • Barry Loberfeld||

    Refuting left-"liberalism" on guns and affirmative action.

  • ||

    I don't understand how you could say the City of New Haven used discrimination. They gave a test, whites and one hispanic passed. Too bad the others (black, brown, yellow or white) didn't study harder. Should we just GIVE a job to a person because of the color of his skin? Whatever happened to having qualifications?

  • Joel||

    What is the difference between the liberal arguments of today concerning race and the arguments made by white segregationist of the past? I don't see a difference. They are all racist.

    They are all racist, which is the point. White supremacy is a shameful phase that the country has largely gotten over; it's not gone, but it's been disavowed by pretty much anyone you'd admit to knowing, and marginalized. Privileges for the otherly-melanined, on the other hand, are in the process of being ever-more-enshrined in law. This is a bad thing, for exactly the same reason white supremacy was a bad thing. See?

  • ||

    Her anti Second Amendment activism will probably define her confirmation process. It will certainly extend the current gun and ammunition buying frenzy and add full to the 10th amendment/States Rights/Partition movements in several states.

    Her being an Hispanic woman is just fine. THINKING that being a Hispanic Woman elevates her among Old White Male jurists is ok. But actually saying that she thinks that by virtue of her ethnic/gender background, she is superior shows that she is lacking in judicial temperment and unfit.

  • Barry Loberfeld||

    What is the difference between the liberal arguments of today concerning race and the arguments made by white segregationist of the past? I don't see a difference. They are all racist.

    From "What's Really Reactionary?":

    Once affirmative action was arbitrarily pronounced the "next step" in the progression of civil rights, any opposition to it could be only a determination to reverse that movement. That's why when Leftists condemn someone as "reactionary," it's not a Strom Thurmond defending Jim Crow, but a Ward Connerly defending Hubert Humphrey. They see no reaction in their own digging up of government racial monitoring, no area of confluence between themselves and the conservators of the Old South. Segregation worked to impose inequality, while affirmative action programs (and reparations and still other proposals) work, we are told, to achieve an opposite "equality" between races -- and doesn't that make all the difference? This is also something Spencer saw coming. The reactionary Leftist, he observed,

    who more than any other in these latter days seems under the impression that so long as he has a good end in view he is warranted in exercising over men all the coercion he is able, will continue to protest. Knowing that his aim is popular benefit of some kind, to be achieved in some way, and believing that the [conservative] is, contrariwise, prompted by class-interest and the desire to maintain class-power, he will regard it as palpably absurd to group him as one of the same genus, and will scorn the reasoning used to prove that he belongs to it.



    And so the Left sees no racism even in its own exaltation of the race above the individual (i.e., racism's very foundation) because -- by virtue of that exaltation -- there are no individuals. "Racism" can therefore be only some kind of "inequality" between irreducible races, the sole denizens of the "multiculturalist" Weltanschauung, where the "structure" of pigment gives rise to the "superstructures" of culture. Essentially, the Left is bringing to race the same collectivist paradigm it brings to class, which is why its rejection of colorblindness shouldn't be in the least surprising: Collectivism needs collectives. That's why America is not a melting pot but a "salad bowl" - an at-once insipid and ominous image for the revival of racial politics. That's why the legal equality of each individual's civil rights is as "illusory" as the legal equality of each individual's property rights. Leftism no more embraced the birth of racial impartiality than it did that of the market economy, preferring to conjure the twin zombies of racial primacy and racial conflict.

    READ THE FULL ARTICLE.

  • ||

    but she is a woman and a latina....nothing else matters...

  • ||

    Which is why I never understood why any libertarian would ever vote for Obama. Lukewarm for Barr I get, voting down the ballot and skipping president I get (and did). But several of the writers on Reason made this guy their choice. A little late now.

    but she is a woman and a latina....nothing else matters...>>

    A shrewd political move. The Republicans can't win. Either they take it lying down, or they further alienate themselves from women and Hispanic voters, and she still gets in. I can't recall a time when I knew without question, a president will be reelected this early in their presidency. Well, we knew it before the election, but he just keeps going and going.

    Nice little monarchy we got here.

  • dave||

    I think she's a great choice! I hope to see her confirmed really quickly...

  • ||

    Folks here might find these two Onion-style parodies of both the Ricci decision and the Sotomayor nomination amusing:

    http://optoons.blogspot.com/2009/04/lawyers-advise-fire-departments-to.html

    http://optoons.blogspot.com/2009/05/senators-empathize-with-sotomayors.html

  • ||

    As I thought when Obama got elected, the court really isnt going to change much. Basically he is replacing a liberal with another liberal (gasp), am I the only one that didnt see this comming. Everyone can forget a conservative/libertarian judge being apointed thats for sure if the Republicans can actually shoot this nomination down (which I doubt) Obama's hand will be forced to pick a centrist, hopefully.

  • ||

    "It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

    She's right on guns because she's right to ignore the 14th Amendment. The 10th Amendment matters more, so yes states can restrict gun rights, even completely ban all guns.

    That doesn't mean they should. It means that state variation in gun law, like state variation in all law, is a greater protection of gun rights than one central document ultimately decided by one central body.

  • ||

    "It is settled law," Sotomayor and the Second Circuit held, "that the Second Amendment applies only to limitations the federal government seeks to impose on this right."

    She's actually wrong about that. The cases cited in support of this proposition all predate the incorporation doctrine. Other appellate courts have reached the contrary conclusion, that the 2A is incorporated. And, of course, there is a handful of SCOTUS dicta supporting incorporation, and none opposing it that I know of.

    Terrible legal craftsmanship, for a judge.

  • ||

    Sotomayor will certainly agree with you on amnesty, welfare eligibility and a Democrat party voter registration card for 30 million illegal alien wetbacks, their anchor babies and millions of their aunts, uncles, cousins etc.

    Woo hoo! Illegal alien wetbacks make the best tortas.

  • ||

    I'm not a gun advocate but I have to admit the history of the 14th amendment makes clear that the Second Amendment was among those that were supposed to be available to citizens of the South. Akhil Amar's books, The Bill of Rights and The Constitution A Biography, while collectivist in many ways, do terrific jobs of proving this. The point is that the freed slaves needed the right to bear arms to protect themselves against Southern state oppression in the Reconstruction era.

  • ||

    was there not a HISPANIC judge named CORAZON in 1938 SO he does not count as first HISPANIC because he is male and with human cloning the sooner we dispense with males the better the world will be

    we becomming like russia first anything is if it is a female or minority

    thank god for PC

  • weenis||

    was there not a HISPANIC judge named CORAZON in 1938 SO he does not count as first HISPANIC because he is male and with human cloning the sooner we dispense with males the better the world will be

    we becomming like russia first anything is if it is a female or minority

    thank god for PC

    His name is Cardozo and he's Jewish, numbnuts.

  • ||

    First of all. Portugese are not...I repeat....not hispanic! Unless you contend that Protugal is part of Spain but that's crazy. She will not be that first latino or Iberian but she will be the first hispanic on the high court. That said......
    She sucks. Her second amendment stance alone proves that she cares not for laws as they are written but only as she wishes them to be. Imagine if someone argued that State and local governments could infringe on 1st amendment rights because 1st amendment rights only apply to the federal government....That is laughable....Yet that is exactly what she argues about the 2nd amendment. Crazy, crazy crazy.

  • ||

    weenis: Jewish is a RELIGION; Hispanic is a NATIIONALITY. Learn the difference.

  • bt6||

    Gee, why is anyone surprised that Barack Zimbabwe wants judges who will disarm the serfs?

  • Andre Kenji||

    Hispanic is a ethnic group. And since I´m a native Portuguese speaker I can them you that´s a very different language from Spanish. If Cardozo is a Hispanic than Alito and Scalia are.

    And Sotomayor can´t be worse than the current Supreme Court. ALL of them have a terrible civil rights record. You can track some glimpses of good judgement(Like Thomas dissent on Raich or Stevens´ dissent on Morse), but all of them are terrible.

  • ||

    Obama's first SCOTUS appointment is a dark, scary shadow of his intentions for America. Do not 20 years of affiliation with, and financial support for a hate mongering preacher and long term friendship with a domestic terrorist couple say enough about his philosophical orientation and perverse views of America? His past affiliations, statements and voting record give much reason to fear that this adminstration's plans for America entail a radical shift to the left with loss of personal liberties, facilitated by (his) agenda driven judges, of which Sotomayor is the prototype. And these appointments will most certainly sail through a Democrat congress with little opposition from an intimidated, wimpy Republican core. Accepting comprimise of our constitutional rights beginning but not ending with 1st and 2nd ammendments,(fairness doctrine and "gun safety"legislation,respectively) will become the new patriotism. His brand of "HOPE" when subjected to scrutiny is "DOPE" for a depenadnt, and ultimately deprived people. Dr. King's dream could well become a bloody nightmare as the people, particularly whites who were intoxicated by his charismatically delivered lies awaken to reality in Obama's America.

  • Will||

    I always find libertarian articles very amusing and very simple minded in ideas.
    Most people don't actually want absolute freedom, which is why democracies don't elect libertarian governments. Irony of ironies, people don't choose absolute freedom. But this refutes libertarianism by its own premise, as libertarianism defines the good as the freely chosen, yet people do not choose it. Paradoxically, people exercise their freedom not to be libertarians.

    The political corollary of this is that since no electorate will support libertarianism, a libertarian government could never be achieved democratically but would have to be imposed by some kind of authoritarian state, which rather puts the lie to libertarians' claim that under any other philosophy, busybodies who claim to know what's best for other people impose their values on the rest of us. Libertarianism itself is based on the conviction that it is the one true political philosophy and all others are false. It entails imposing a certain kind of society, with all its attendant pluses and minuses, which the inhabitants thereof will not be free to opt out of except by leaving.

    And if libertarians ever do acquire power, we may expect a farrago of bizarre policies. Many support abolition of government-issued money in favor of that minted by private banks. But this has already been tried, in various epochs, and doesn't lead to any wonderful paradise of freedom but only to an explosion of fraud and currency debasement followed by the concentration of financial power in those few banks that survive the inevitable shaking-out. Many other libertarian schemes similarly founder on the empirical record.

    A major reason for this is that libertarianism has a naïve view of economics that seems to have stopped paying attention to the actual history of capitalism around 1880. There is not the space here to refute simplistic laissez faire, but note for now that the second-richest nation in the world, Japan, has one of the most regulated economies, while nations in which government has essentially lost control over economic life, like Russia, are hardly economic paradises. Legitimate criticism of over-regulation does not entail going to the opposite

  • ||

    The 1st Amendment initially only affected Congress. As it says "Congress shall make no law..." The 2nd Amendment does not begin with that. It simply states "... the right of the people to keep and bear arms shall not be infringed." This applies to all. Now, if she wants to say that the Bill of Rights only applies to the limit of the Congress, we need to address 1) the 10th Amendment, and 2) the 14th Amendment.

    The 10th Amendment gives power to the States and to the People if the Federal Government is not given the authority. Since the 2nd Amendment affects all, the states have no power to legislate.

    If that is not convincing enough, the 14th Amendment made it so that the Bill of Rights also applied to states. This overturned the ruling in Barron v Baltimore, which stated the opposite.

    At any rate, being able to own and keep in possession a firearm is a natural right. It should not matter if it is in the Constitution. Everyone has the right to defend themselves, their property, their families, or even strangers.

  • Federale||

    The reverse of discrimination is not discrimination. Discrimination against whites is still discrimination.

  • ||

    Sotomayor gets it wrong again!

    If the Constitution and the Amendments only apply to what the Federal government controls and states are able to set them aside, then there is no justification in the law for the end of slavery (not withstanding the obvious reason that it is inherently and morally wrong), the states can freely abridge speech (already decided that they cannot) and the states do not have an obligation to ensure equal protection under the law.

    Another flaw is the President's motivation and Sotomayor's concept of compassion and empathy in the execution of judicial review. The fundamental problem with compassion and empathy is that there is no uniform way to apply subjective emotional evaluations.

    The Legislative branch has the duty to build in any forgiveness based upon circumstance when the laws are formulated. That way, something faintly resembling the "will of the people" can be embodied in the law.

    However, that forgiveness has to be crafted so that no one receives it because they are part of a group whether identifiable or arbitrary. Rather, it must be crafted to ensure the equal protection of an individual's rights so that a person will not be excluded from society as a whole entity.

  • Scarpe Nike Italia||

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