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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:  December 31, 2009
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Topic category:  Government/Politics

Pretense Triumphed, Not Judicial Conservatism

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 (

"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 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,,, and 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

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    Copyright © 2009 by Michael J. Gaynor
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