Judge Sotomayor is a terrible pick for those of us who believe in freedom. Other conservative web sites, such as the National Review, will have super details of Judge Sotomayor's judicial opinions. We leave that work to them, although, a quick review of her history here is illuminating: :Sotomayor's Rulings
Judge Sotomayor seemingly always sides with minorities in discrimination cases, leading us to wonder, upon which seat does the discrimination in her court really lay? She's affirmed the woeful precedent that the 2nd amendment does apply to state governments. We marvel: if states are allowed to ban guns, then are they allowed to also regulate speech?
With a ruling on the EPA, Judge Sotomayor's dismissed the notion of cost efficacy and barred remediation. Thus, Judge Sotomayor's EPA rulings are perhaps her most dangerous. In Sotomayor's world, it does not matter how much it costs to save 100 fish, and you cannot fix the deaths of 100 fish in an industrial site by breeding elsewhere and restocking, even with 1000 fish. Applied to carbon dioxide, such policy forces us to preindustrial levels and lifestyle. Removing carbon dioxide from the atmosphere cannot be considered, even if more were removed.
This ruling troubles us but in our rush to condemn the judge for it, The Treatyist made a terrible mistake. We overlooked the real issue: does the law in question allow for remediation?
If the EPA and the laws around it do not allow for remediation as a substitute, then, Judge Sotomayer made the absolutely right ruling and should not be held to task for upholding a stupid law. It is as wrong for the courts to invent new law as it is for the President to issue signing statements. Clearly we need to reform the EPA. The place to do it is in the congress and not the courts. On the other hand, if Judge Sotomayer cavalierly tossed aside EPA rules that would have allowed fish to be restocked, then, we should condemn her for exerting a legislative power the Constitution does not grant.
Now, we do find that conservative commentary about her admission's criteria to Princeton to be misplaced. Princeton is a private institution, is private property, and that University can admit whoever it wants on any basis whatsover. If Princeton wanted to enroll a random selection of homeless people, it could. Ultimately, its not how you get into Princeton that matters, but how you got out. Admitted by affirmative action or no, Judge Sotomayor graduated from the top of her class. Her intellectual capabilities should not be held in doubt.
Some would have us believe in a living Constitution, but we'll be fans of a dead one. In a living Constitution, Judges are free to invent new rights based upon their own studied whims. Many conservatives incorrectly fall into the foolishness of this debate, as they accept the incorrect proposition that is the Constitution gives us rights.
The Constitution does not give the people rights. The Bill of Rights does not give the people rights. The people always have rights. You have rights because you are a human being, because you think and because you breath. The Constitution is a treaty among them that gives the government certain powers. The Constitution alludes to this in the preamble:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
US Constitution, Preamble
And affirms it in Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people
US Constitution, Amendment X
The Constitution does not give the Congress the right to regulate guns, the Congress has no right to do so, regardless of whether there is a 2nd amendment or not. Nor does the Congress have the right to regulate speech, or religion, because there is no power granted to it by the Constitution. And, because the Constitution does not give the Congress the right to regulate the environment, the Congress has no right do do so. Since the Constitution does not give the Congress the right to regulate employment, education or any of many other things, it cannot. Conservatives, take note: The Constitution does not give the government the right to regulate marriage, either. The most constitutional opinion that there is, the one that correctly recognizes the Constitution for the treaty that is, is the one that holds that the citizens can have guns, be gay and be married, build whatever factory they want - within the confines of their state, can possess any item and say anything. That is freedom for the people.
The Constitution is a Treaty, and there is no need for any single party to judicially alter its terms to invent new rights. The people already have them. If we wanted the federal government to have powers, we should have amendments to allow it.
Thus we expose the great lie of liberal judicial activism. Judges cannot give us rights that we already have. Every ruling that they make only takes our rights away, at best cancelling out a foolish law made by the federal government. Rarely do we see this from activist courts. Judicial activism is thus not about giving people freedoms. At best, judicial activism reduces freedom through its support of the false idea that we only have those rights printed by our founding fathers in ancient times. At worst, judicial activism is merely another vehicle for redistribution of power.