The Federalist Society: Sotomayor Debate Comments

The Federalist Society: Sotomayor Debate Comments Posted July 23, 2009

http://www.fed-soc.org/debates/id.420,dbtid.31/view_comments.asp

[Lester Jackson, Ph.D.] I was very disappointed that the Sotomayor hearings and debates almost totally ignored how activist justices have eviscerated the death penalty. There are few areas with so many concrete and easy-to-understand examples of how activism has harmed ordinary law-abiding citizens. I have written a detailed list of questions* based on actual specific egregious Supreme Court decisions that would shock a substantial majority if ever adequately reported (or even mentioned) by the media. No one should expect the questions to be answered honestly by any activist nominee. The main point is that they be asked repeatedly, now and in the future. Just doing so would raise public awareness of the damage caused by activist justices (including more murder victims).

Although the hearings are over, the confirmation vote is not. Moreover, there will be future nominees and Senate elections. Also, the Sotomayor debate should not end with her confirmation. Senators who approve her should have to answer these questions now and when they next face the voters, especially if, as is probable, she joins the activist capital punishment abolition bloc. (Those who think this less likely because she was once a prosecutor should remember that, e.g., Souter and Warren were ex-prosecutors.)

It is not enough that activist nominees pretend at hearings to be paragons of restraint. That means nothing when they show their true colors after confirmation. They must be kept off the courts. In the end, if opposition to judicial activism is ever going to succeed, it must do so at the ballot box by (1) presenting the issue in a way voters can understand and identify with; and (2) holding Senators accountable for the predictable activism of justices and circuit judges they vote to confirm.

* URL: tcsdaily.com/article.aspx?id=071509A ******************************

National Journal: The Ninth Justice Posted August 3, 2009

http://ninthjustice.nationaljournal.com/2009/07/the-missing-case.php#1345134

Lester Jackson, Ph.D.

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Regarding the repeated claim that the Sotomayor hearings occurred on a conservative playing field: While liberals may not be content only with a sure Supreme Court vote for the results they want, it is almost painful that conservatives take comfort that the “president and nominee … did not defend or promote the progressive judicial philosophy that they both previously articulated….” Surely, they cannot credit “confirmation conversions” contravening numerous prior statements. They must expect that Sotomayor will not simply “apply the law” but will, instead, pursue an activist “empathy” agenda by saying the law means whatever she wants it to mean. There is nothing new in liberals pretending to be not out of step with a more conservative public.

More importantly, slogans (“activism” vs. “self-restraint”; “apply the law” vs. “make the law”) do not make clear to the public the real import of activism. For this, the critical factor is not judicial “philosophy” or “vision” but actual decisions. It is the latter that explain what the former is all about.

Lay people are not interested in academic and legalistic discussions. (Even Ricci questions in terms of “disparate impact” fell flat.) Any good teacher knows that concrete examples are critical to getting a point across. Prior to the hearings, I suggested to groups opposing Sotormayor that she be asked about specific death penalty decisions and statements by justices. Although she was not, few issues can match capital punishment in providing easy-to-understand illustrations of activism (e.g., a convicted murderer must be allowed to successfully argue he should not be executed because he only endangers old ladies; justices contending rape can be unharmful and it is a “misnomer” to consider as victims the families (mere “third parties”) of girls brutalized, raped and murdered).

I have prepared questions drawn from actual Supreme Court writings. No one should expect forthright answers by any activist nominee. The point is that, now and in the future, the questions be asked repeatedly of both judicial nominees and senators who confirm them. Just doing so would raise public awareness of what activist justices do (including causing new murders of ordinary law-abiding citizens by judicially spared previously convicted murderers). ********

Crime and Consequences Crime Blog

http://www.crimeandconsequences.com/crimblog/2009/08/not-a-good-sign.html#comments

Lester Jackson | August 19, 2009 11:06 AM

Given Sotomayor’s activist history, her stay vote should surprise no one. It would be surprising, if not astonishing, were she ever to join the conservative bloc against Stevens, Ginsburg and Breyer in any death penalty case.

Prior to and during the hearings, I suggested to groups opposing Sotormayor that she be asked about specific past death penalty decisions and statements by justices. Regrettably, she was not. This could have forced her to take public stands on the death penalty. Refusals to answer would have validated plausible suspicions.

More importantly, asking such questions would educate the public about just what the Supreme Court has done to the death penalty. Any good teacher knows that concrete examples are critical to getting a point across. Few issues can match capital punishment in providing easy-to-understand illustrations of egregious activism (e.g., a convicted murderer must be allowed to successfully argue he should not be executed because he only endangers old ladies; justices contending rape can be unharmful and it is a “misnomer” to consider as victims the families (mere “third parties”) of girls brutalized, raped and murdered). These examples would shock a substantial majority if ever adequately reported (or even mentioned) by the media

…. Future Supreme Court and circuit nominees should be confronted with capital punishment specifics. Finally, since judges are unaccountable, at least senators should face questions about and be held accountable for the death penalty activism of those they vote to confirm.************

http://spectator.org/archives/2009/07/29/is-lindsey-graham-crackers#comment_95616

Lester Jackson, Ph.D.| 7.29.09 @ 1:37PM

Reading conservative comments on the Sotomayor vote, one does not know whether to laugh or cry. Jeffrey Lord omits the most important single criticism regarding Lindsey Graham. He just faced the voters in 2008. Why is he still in the Senate?

There is no excuse. Graham made clear long ago what he is.
          The true target of conservative criticism of Graham’s vote should be conservatives themselves. One can almost understand how John McCain gets away with so much because he is from Arizona. But how and why in the world did conservatives permit such an insidious man as Graham to be reelected from so conservative state as South Carolina? Could no true conservative in the whole state be found to run? Where are the conservative resources? If conservatives could not or would not take advantage of the opportunity to defeat this man, they are a pitiful paper tiger. They are also laughable when they take solace in the claim that Sotomayor had to commit perjury by pretending to be what she’s not because the American people support judicial restraint and oppose activism and as many as 30 Senators will vote against confirmation. So what? We know what Sotomayor will do once she’s on the Court?
        Since confirmed judges are unaccountable, there will be no improvement until conservatives actually hold the Grahams of the political world accountable for the predictable activism of those they vote to confirm.
        Until this happens, conservatives will be reduced to pathetically crying on each others’ shoulders and taking solace in “moral victories.”