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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 12, 2009
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Topic category:  Government/Politics

Judge Sotomayor's Record Should Be Scrutinized, Not Whitewashed or Ignored

Is Judge Sotomayor a wise impartial judge dedicated to the rule of law or a passionate, partisan Latina who will use instead of follow the law when the opportunity arises?

Kudos to Wall Street Journal's Naftali Bendavid for "Sotomayor's Defense on 'Wise Latina' Comment Takes Shape."

Mr. Bendavid: " When Judge Sonia Sotomayor faces the Senate Judiciary Committee next week, she will finally get to explain before the cameras her comment that a 'wise Latina' can often reach a better conclusion than a white man. That response could help determine whether her confirmation is smooth or rocky."

Mr. Bendavid's statement presumes confirmation, in accordance with the conventional wisdom.

However, like President Obama's relationship to ACORN, scrutiny of Judge Sotomayor's record is both appropriate for patriotic Americans and anathema to the liberal media establishment.

Whether or not the conventional wisdom is right this time, Judge Sotomayor's membership in the National Council of La Raza and her infamous comment--"I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life"--should be scrutinized.

Predictably, Judge Sotomayor's supporters insist that "wise Latina" is not a symptom of a fundamental problem not to be knowingly tolerated in a United States Supreme Court Justice.

For example, Senator Kirsten Gillibrand (D., N.Y.): "I asked her that question...and she was very direct. She just said, '[Latina identity] is something that informs my experience, but I'm always going to look to judicial precedent, I'm always going to follow the rule of law.'"

The initial White House excuse for Judge Sotomayor's "wise Latina" line--poor word choice--did not work, since Judge Sotomayor had repeated that statement many times.

How plausible is the next excuse, that Judge Sotomayor is a person who will faithfully follow the law instead of make law to suit her personal political agenda?

That videotape of Judge Sotomayor on how federal appellate judges really make law should give United States Senators pause.

When Judge Sotomayor speaks candidly, she reveals herself as a believer in legislating from the bench.

Moreover, the introduction by editors-in-chief Victor Rodriguez and Alegria De La Cruz, obviously Sotomayor admirers, to the issue of the La Raza Law Review in which Judge Sotomayor's 2001 "wise Latina" speech was published suggests that Judge Sotomayor's long-term goal has been to make law as a judge, not follow the rule of law.

"In her comments to the symposium's audience, Judge Sotomayor discussed her many-faceted, multi-layered Latina identity, using food, music, and language to describe how her culture and her experiences as a Latina have impacted her role on the bench. Raising the prototypical American tension between 'the melting pot and the salad bowl' that both attempts to celebrate and yet ignore racial and gender differences among our diverse population, Judge Sotomayor spoke to what it would mean to the American judicial system to have more women and people of color on the bench. Judge Sotomayor wondered whether we do a disservice both to law and society by ignoring our differences as women and men of color. She suggests that as a group, women and men of color can have a dramatic and beneficial effect on the development of law and on the profession of the judiciary.

"Further developing Justice O'Connor's famous statement that a wise old man and a wise old woman will reach the same conclusion in deciding cases, Judge Sotomayor states that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white man who hasn't lived that life. She challenges all of us to begin our own evaluation as to what our identities mean in our lawyering, in our judging, and in our positions of power. In conclusion, Judge Sotomayor asks all of us to continue the struggle for racial and gender parity in our field--the fight is important for the attainment of statistically significant numbers so that we can measure the differences that our community will make and is making."

Is Judge Sotomayor a wise impartial judge dedicated to the rule of law or a passionate, partisan Latina who will use instead of follow the law when the opportunity arises?

Senator Gillebrand's blithe acceptance of Judge Sotomayor's assurance that she is always going to look to judicial precedent and follow the rule of law is startling naive.

Manuel Miranda of The Third Branch Conference commented that "the whole race-bias issue" suggested by Judge Sotomayor's 'wise Latina" is "explosive" and "worthwhile."

It IS "explosive."

It will be "worthwhile," IF it is properly pursued.

New York's senior Senator, Democrat Charles Schumer, claims that Judge Sotomayor's judicial record shows no evidence of unfairness or favoring minority groups. Ask the white and Hispanic New Haven firefighters who passed a test for promotion only to have the test resulted ignored because no black firefighters passed.

The record shows that Judge Sotomayor was part of a three-judge appellate panel that used a summary order to deny the appeal of the firefighters who had passed the test.

Not only did those judges decide the appeal wrongly, they added insult to injury by the way they decided the appeal.

As Judge Jose Cabranes (a Latina!) explained in a scathing dissent on a petition for reargument that ultimately led to reversal in the United States Supreme Court (with all nine Justices agreeing that Judge Sotomayor had not used the proper judicial standard), despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case."

It's NOT odd that La Raza and ACORN are eager to have Judge Sotomayor confirmed and her supporters are racing toward confirmation as fast as possible.

Why aren't the Senators scrutinizing the minutes of the National Council of La Raza during all the years that Judge Sotomayor was both a federal judge and a Council board member?

Michael J. Gaynor

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Biography - Michael J. 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.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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