Lynn v. Sekulow

Lynn v. Sekulow


Sotomayor’s Record: Scant on “Hot Button” Issues

posted by Rev. Barry W. Lynn

Sonia Sotomayor’s judicial record is pretty sparse on many of the issue you and I debate on this blog, Jay.  This did not stop you from announcing on Fox News last Friday that she had an  “very very strict” position on the Establishment Clause.  What cases are you talking about?

As I read her record she is a moderate (at most) on religious liberty matters.  She was on a Second Circuit appeals panel that granted a New York City church the right to allow homeless persons to sleep on the institution’s outdoor property.  She also ruled, as a district court judge, that a rabbi could erect a temporary, freestanding menorah in a city park because other groups had been allowed to erect similar items in the past.  She relied on two Supreme Court cases argued by a fellow named Sekulow. Admittedly, she did serve on a Second Circuit panel that affirmed a lower court’s decision to uphold the firing of a substitute teacher who invited students to accept Jesus and led them in prayer.  Surely, you don’t agree with the teacher’s conduct.

Frankly, I’d like to know more about how she looks at religious liberty issues. Maybe the hearing will provide some more data for both of us.

On the Liberty University matter, I did file a formal complaint with the IRS regarding the partisan decision by the school to revoke recognition and student funding of the Democratic club on campus.



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Peter S. Chamberlain

posted May 31, 2009 at 7:53 pm


A retired lawyer with state and federal appellate, but no U. S. Supreme Court, experience, a strict-constructionist conservative on most issues, and an active Republican since back when that was risky at the courthouse, I have yet to see anything, other than the fact that she and Obama are liberal Democrats, cited, with solid sources, that would appear to offer a basis for the Senate rejecting Sotomayor’s appointment. A 25 year old comment that can be interpreted different ways, and is largely a statement of fact rather than of this appointee’s view of the Constitution, which is the only documented point I have found yet, hardly seems worthy of more than a question or two and an opportunity to clarify it at the Judiciary Committee hearing, and would hardly support denial of confirmation of a President’s appointment to the Court. Of course, as a conservative Republican on most issues, I think the process has been handled wrong since “Borking” became a verb and that both parties should return to the way this was generally done before that, when denial of confirmation required some real evidence that an appointee of either party was genuinely unqualified or disqualified. Presidents from both parties have given us Justices who have turned out to shock and disappoint those who appointed, supported, and voted to confirm them for the last two centuries.
There is something I would like our Senators to get rather deeply into in the hearings or floor debate on Sotomayor’s confirmation. Obama has left me a trifle confused, and curious whether he and the others who profess to reject the theory of Constitutional function and interpretation which the Founders, as diverse as Jefferson, Madison, Hamilton, and Jay, all said they believed, typified by the “original intent” theory promoted by the “Federalist Society,” and adopt the so-called “living constitution” theory typified by the “Constitution Society,” which minimizes the text and original history and interpretation in favor of Justices reinterpreting Constitutional provisions as a kind of continuing Constitutional Convention. Of course, the Supreme Court justices have never been the kind of body anyone, of whatever persuasion, would have envisioned as an actual Constitutional Convention. I personally doubt that the current, or any recent, Senate Judiciary Committee would be, either.
During the campaign, e.g., their statements at the Saddleback Forum, Obama cited four (4) liberal Justices, some appointed by Republican Presidents, as his models, and McCain cited some of the conservative Justices, as their models for appointments they would make to the Court. To me, that was important, if hardly new or surprising, information highly relevant to the choice between them for President. However, Democratic Senate leader harry Reid may well have been right when he said that most voters don’t care about, or give much weight to, who a candidate would appoint to the courts when they decide how to vote. Considering polls indicating that students at Ivy League and other universities, and other voters, could not even name five sitting Supreme Court justices, much less identify and explain their theories of Constitutional interpretation, he may well be right, although that horrifies me and anyone in either party who knows and cares about the Supreme Court.
In the recent case of Louisiana v. Edwards, a case which had been well known to be pending before the Court during the Presidential campaign. after the Court split 5:4 along liberal-conservative lines in holding that the Eighth Amendment’s cruel and unusual punishments clause barred the states from ever having the death penalty available for the aggravated sexual assault of one, or successive, children, with safeguards against its abuse. The liberal majority explicitly stated that they should and had use their subjective personal feelings in about this law in deciding this and other cases. Justice Stevens having previously announced that he would always vote that the death penalty violated the Eighth Amendment], both Obama, a former President of the prestigious Harvard Law Review and Professor of Constitutional Law, and McCain, stated publicly that they disagreed with that majority opinion and agreed with the result reached by the four dissenting conservative Justices, two of whom, Alito who wrote that dissent and Chief Justice Roberts who joined it, Obama had voted not to confirm when he was a Senator. I could not find anywhere Obama had explained the legal reasoning process by which he had arrived at his position on this issue. Harvard Law professor and active Supreme Court advocate Laurence Tribe, one of Obama’s advisors, published his opinion that the conservative minority rather than the liberal majority had reached the right result, and his different legal reasoning by which he had arrived at that conclusion, after the opinions were announced.
Although the guilt or innocence, and the evidence upon which the jury had reached its decisions on guilt and recommending the death penalty, were not before the Court, the liberal Supreme Court majority in that case accepted the invitation of some advocates who had filed briefs there and wrote an obiter dictum attacking the credibility not only of the child in that case but of child sexual abuse victims as a class of witnesses, notwithstanding that this did not lead the court even to suggest that there was any doubt about the defendant’s guilt. The terrified child had not told the truth initially, but one of the expert sources cited in the opinion dealt with that special problem, very common in such cases, and that part of the expert’s textbook was not mentioned. This will haunt every child sexual abuse case, in any court, from now on. I am led to wonder why the court went down that unnecessary and damaging path when the issue of guilt or innocence, or the sufficiency of the evidence, were not before the court. .They have yet to deal with the far more dangerous reliability issues of eyewitness identification, which, of course, was not an issue in this case, and no one could doubt that the crime actually happened. .
I have known an awful lot of survivors of child sexual abuse, mostly incest, in my law practice and other privileged and confidential relationships, and have taken courses on this from top academic and professional experts on the subject, disagree strongly with the liberal majority’s conclusion that this crime is not serious enough to justify the death penalty, and urged Obama to file an amicus curiae brief citing his and Prof. Tribe’s views when the case was before the Court on a motion for rehearing, after it was discovered that the lawyers for both sides and the United States and others as amicus curiae had all failed to call the Court’s attention to a recent Congressional enactment providing for the death penalty in such cases of rape of a child where federal rather than state law applied to the crime, but neither of them did so, and the court reaffirmed that holding.
Since, most unfortunately, that issue can probably never reach the Court again, I would urge the Senate Judiciary Committee to probe the thinking of Sotomayor, and any later appointees by Presidents of either party, to explore their legal reasoning in relation to that case, specifically including, but not limited to, the place, if any, for a Justice’s subjective feelings on this or any issue in their opinions, given Obama’s and the liberals’ reference to them in the process of arriving at Supreme Court opinions. .
I am concerned about the left’s emphasis on feelings, especially in the judicial process. Feelings are not facts. They are not evidence of facts. They are largely products of thought processes, and they follow actions. I could cite psychological and psychiatric experts for those statements if necessary. One memorable day in a class at Vanderbilt Law School taught by the famous Professor Edmund M. Morgan, who had taught Felix Frankfurter and other future Justices while at Harvard before coming to Vanderbilt after mandatory retirement there, and who I would consider a liberal on most issues, one of my classmates started his answer to a question with “I seem to feel . . .” Prof. Morgan cut him off and said “Seem to feel? How can you seem to feel? You either feel or you don’t feel. This is law school. You’re supposed to THINK. Have you ever tried it?”
It was one of the undisputedly great liberal justices—I’m thinking Cardozo but haven’t looked at this in forty years—who we learned in law school said “I hate ‘justice.’ Whenever I hear an advocate before the Court appealing to that, I have to assume that he doesn’t have a case or hasn’t done his homework and found the right rule of law to argue.” [the first part of this quotation is accurate and the rest is a fair recollection or paraphrase.]
I have no illusions that any trial judge or appellate justice before whom I ever practiced or prepared to practice, and I had hoped to go to the Supreme Court but the case settled, did not have, and was not influenced, consciously or unconsciously, in his judicial performance, by life experience, professional experience in practice, judicial experience, religious, ideological, and political biases, etc. No competent lawyer would prepare an argument for the Supreme Court without researching and considering these factors among those that might influence, and how to persuade, each justice. Of course you can’t exactly look up, or ask a justice to detail his or her “life experience” with professing Christians, or atheists, some of either of whom are fools, hypocrites, liars, or child molesters, much less with intimately personal subjects like child sexual abuse and incest, with which I unexpectedly found myself dealing in my law practice. .Of course, much as I could wish that one or more of the justices on what I think, and feel strongly, was the wrong side of Louisiana v. Edwards, had some real, and maybe personal, experience with the effects of childhood sexual abuse, I can’t figure out any way that one could justify direct inquiry into, much less voting against confirming a justice because he or she had, or did not have, that expertise, especially if garnered the hard way. I have represented survivors of severe childhood abuse, up through incestuous rape and attempted murder, before judges, and read opinions on such subjects by high court justices, who just don’t get it, just as I, and some of them, believe the five liberal justices in the majority in Louisiana v. Edwards somehow didn’t. . Attorney-client and other legally recognized privileges and confidences prevent me from naming the incestuously and otherwise hideously abused daughters, sisters, and nieces of elected and high appointed officials and politicians of both parties. Both parties had actual notice of and should have been indicted and convicted for concealing, and conspiring to conceal, the gross moral dereliction of Rep. Foley from the average voter when he was GOP Co-Chair of the Congressional Child Abuse Caucus before the Republicans failed to clean their own house and let the Democrats choose the time to use that, damaging them in the 2006 election cycle. None of my Members of Congress would join, or explain why they had not acted on my request that they join or send a staff representative to, the Child Abuse Caucus. Now I think I know why.
I hope no Republican will try to argue that Sotomayor was chosen just because she is a Hispanic woman, or that there is, indeed, anything necessarily wrong with giving attention and consideration to qualified candidates from such backgrounds as a form of “affirmative action.” Too many Republicans have fallen into error by making “[plaintiff’s] trial lawyer” into an epithet, except when they need one.
What we should point out in this process is that, when Bush chose Miguel Estrada, a similarly well-qualified, conservative, judge for the U. S. Court of Appeals, is the vicious and dishonest way the Democrats blocked a vote on his confirmation for illegitimate purely political reasons of appearance.
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I have been treated unfairly by some elected state Court of Appeals justices. One insisted, in a reported opinion, that I had made a misrepresentation in oral argument which, as I explained, would have been contrary to fourteen statements I had made in the written trial court record or my brief on appeal, and which I would have had no motive to make because my argument was not that the court had ruled against us but that it had ignored and failed to act on repeated oral and written requests to rule on the point, which the Rules of Appellate Procedure treat as an appealable action. However, none of the allegations of poor judicial temperament or unfairness to counsel or litigants I have seen are supported by evidence or even attributed to anyone, and many appear to prove nothing but a tough style of questioning designed to get at the root of an issue. It’s not my favorite judicial style, but I learned to handle that in pre-law courses.
Before and after the recent dissection–vivisection of prospective Supreme Court justices’ careers and lives in the confirmation “advise and consent” process, which then-incumbent Republican National Committee Chair Mehlman candidly admitted both parties had abused, and which both parties should take action to stop, Supreme Court Justices have been shocking and appalling the Presidents who appointed and the Senators who voted to confirm them for two centuries.
Apart from the very real possibility that whoever Obama might appoint to this vacancy if Sotomeyor somehow got blocked might well be less to your or my liking, I think everyone who cared about the Supreme Court and voted for Obama knew this appointment was a real possibility, just as anyone voting for Reagan knew or should have known that he would likely appoint Bork. We can and should use this process to help Supreme Court litigators understand her thought process, and to develop and make some points about the interpretation and application of the Constitution, but I do not want my Republican Senators to engage in this tit-for-tat politics of personal destruction, and expect that she will be confirmed barring something I don’t know now. If she were unfit, the factual reasons for that should have been brought out when she was confirmed to her current position on the very important U. S. Court of Appeals for the Second Circuit.
My Senator Cornyn, on the Judiciary Committee, and a former state supreme court justice himself, appears to be taking the right approach here.



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N. Lindzee Lindholm

posted December 6, 2009 at 1:35 pm


Unfortunately, the hearing didn’t allow us to acquire better insight into how Sotomayor looks at religious liberty issues, but we’ll have a chance to see now, for better or worse. I wouldn’t call someone who legislates from the bench a “moderate”. She doesn’t adhere to a strict interpretation of the Constitution, either.



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