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Southern Baptist ERLC opposes Sotomayor nomination, says she will ‘redefine the law’

WASHINGTON (BP)–As the U.S. Senate Judiciary Committee began considering Sonia Sotomayor’s nomination to the Supreme Court Monday, the Southern Baptist Ethics & Religious Liberty Commission announced its opposition, saying she is an “unpredictable wildcard” who will work to “redefine the law.”

The commission announced its position in an e-mail alert from its president, Richard Land, that linked to detailed information about the nominee. Senators read opening statements Monday and will begin questioning Sotomayor Tuesday. She was nominated by President Obama to replace former Supreme Court Justice David Souter, who retired and was a member of the court’s liberal bloc.

The ERLC urged constituents who agree with its position to call their senators and urge a “no” vote.

“After carefully examining her record as a lower court judge, we believe that Sotomayor should not be confirmed to serve on the nation’s highest court,” Land said in the e-mail. “Sonia Sotomayor’s record reveals that she is perfectly willing to lift the blindfold of justice to achieve her desired result. She is a judge with a terribly flawed view of the judicial system at best or a judge who simply doesn’t care what the law says at worst. She has constantly shown her lack of deference to the Constitution. She is the type of justice who instead of applying the law neutrally will redefine the law to conform to her policy preferences.”

The ERLC’s “fact sheet” on Sotomayor acknowledges that she has not ruled directly on abortion as an appeals court nominee but that there nevertheless is “tangential evidence” that she does support Roe v. Wade, the decision that legalized abortion nationwide. Among that evidence: 1) her serving on the board of the Puerto Rican Legal Defense and Education Fund from 1980-92 when the organization issued at least six pro-Roe legal briefs; 2) assurances by the White House to liberal groups that she shares President Obama’s philosophy on legal theories at the heart of Roe; 3) the declaration by pro-choice senators that they were comfortable with the nomination after meeting with her privately; and 4) her “entire jurisprudential approach.” Norma McCorvey — the “Jane Roe” in Roe v. Wade — was among the pro-life protesters arrested Monday for interrupting the hearing by shouting comments about abortion. McCorvey formerly was pro-choice but now is pro-life.

“The bottom line is that Sonia Sotomayor is an unpredictable wildcard,” Land said. “Across the issues her record is either far too thin or hidden behind non-published orders and per curium opinions. Simply put, placing Sonia Sotomayor on the highest court in the land jeopardizes our nation’s commitment to equal treatment under the law.”

As previously reported in Baptist Press, Land does not support a proposed filibuster, saying it would be hypocritical to back one after opposing filibusters of President Bush’s nominees.

When questioning begins Tuesday Sotomayor will be critiqued on a number of fronts, including a comment she made in 2005 when she said, “All of the legal defense funds out there, they’re looking for people with court of appeals experience because … court of appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law — I know. … I’m not promoting it and I’m not advocating it.”

She likely also will receive tough questions about a case, Ricci v. DeStefano, in which the Supreme Court recently overturned a decision she and her colleagues on the U.S. Second Circuit Court of Appeals had made. In that case, a group of white and Hispanic firefighters sued New Haven, Conn., after the city tossed out a promotional test that the firefighters had scored high on. No black firefighter scored high enough to be promoted. The Supreme Court ruled that the city had wrongly discriminated against the group of white and Hispanic firefighters; Sotomayor had sided with the city.

If confirmed, Sotomayor would be the first Hispanic Supreme Court justice. Opening statements generally split along party lines, with Republicans expressing strong concerns and Democrats applauding the pick. Two Republicans, Orrin Hatch (Utah) and Lindsey Graham (S.C.), noted that while they may have reservations about this particular nominee, it has nothing to do with race. They noted they backed Miguel Estrada, an Hispanic appeals court nominee of President Bush who was filibustered by Senate Democrats.

Hatch even quoted then-Sen. Obama’s speech 2005 speech that opposed the appeals court nomination of Janice Rogers Brown, who is black and whom Obama voted against. Hatch said he will use three questions from Obama’s speech in examining Sotomayor, including 1) whether a nominee can set aside her personal views and decide each case on the facts and merits alone; 2) whether her speeches provide clues as to whether she has an “overreaching judicial philosophy.” Quoting Obama, Hatch said he would not let her inspiring life story distract from the fundamental focus on the kind of judge she might be.

“The task before us is to determine whether Judge Sonia Sotomayor is qualified by legal experience and especially by judicial philosophy to sit on the Supreme Court of the United States of America,” Hatch said.

Because Sotomayor’s legal trail is thin in several areas, Obama became a target for several senators. Republican Jon Kyl criticized Obama for saying that in some court cases, the “critical ingredient” to who wins comes down to is “what is in the judge’s heart.”

“I respectfully submit that President Obama is simply outside the mainstream in his statements about how judges should decide cases,” Kyl said.

Sen. Jeff Sessions (Ala.), the ranking Republican on the committee, said he fears the “legal system is at a dangerous crossroads.” Down the wrong path, he said, is a system where a judge is “free to push his or her own political or social agenda.” He criticized then-candidate Obama for saying the “breadth of one’s empathy” is key in determining some cases.

“I fear that this empathy standard is another step down the road to a liberal, activist, results-oriented relativistic world where laws lose their fixed meaning, unelected judges set policy, Americans are seen as members of separate groups rather than as simply Americans.”

Democratic Sen. Benjamin Cardin (Md.) defended a liberal view of the Constitution, calling it a “living document.” Listing several cases, Cardin said, in part, “Before the court ruled in Roe v. Wade women had no constitutional right to privacy.”

“These are difficult questions that have come before the court and that the framers could not have anticipated,” he said.

Democratic Sen. Charles Schumer (N.Y.) argued that Sotomayor was the type of justice Republicans long have defended.

“Her record shows that she is in the mainstream,” he said. “She has agreed with Republican colleagues [on the bench] 95 percent of the time. She has ruled for the government in 83 percent of immigration cases. … She has ruled for the government in 92 percent of criminal cases. She has denied race claims in 83 percent of the cases and has split evenly on employment cases between employer and employee.”

For her part, Sotomayor patiently listened to each senator speak for roughly 10 minutes before taking the oath and delivering her opening remarks.

“In the past month many senators have asked me about my judicial philosophy,” she said. “[It’s] simple: fidelity to the law. The task of a judge is not to make law. It is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its term.”
Michael Foust is an assistant editor of Baptist Press. The ERLC’s fact sheet on Sotomayor is available here. The summary is available here. Senators can be reached by calling the capitol switchboard at 202-224-3121.

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  • Michael Foust