Saturday, 11 July 2009


Ken Berwitz

Sonia Sotomayor, the judge who Barack Obama has nominated for the Supreme Court, will have her confirmation hearings this week.  Jed Babbin of, has an absolutely excellent column which suggests five questions Ms. Sotomayor should be asked, based on her personal affiliations and several key judicial rulings. 

Here it is.  I urge you to read every word:

Questions for Sotomayor

by  Jed Babbin



Senate Judiciary Committee Chairman Pat Leahy (D-Vt) is rushing the Supreme Court nomination of Second Circuit Judge Sonia Sotomayor to its first hearing on Monday.

Since President Obama made the nomination on May 26, we have learned a lot, but not enough, about Sotomayors background and performance in her twelve years on the bench, first as a district court judge and then on the Second Circuit Court of Appeals.

We know that Sotomayor is a self-labeled affirmative action baby. She was, as a Princeton undergraduate, already a political activist. She was head of the campus chapter of Accin Puertorriquea, a Puerto Rican activist group. According to a Washington Post report, in April 1973 she wrote and made a formal complaint to the U.S. Department of Health, Education and Welfare, accusing Princeton of an "institutional pattern of discrimination" in hiring "Puerto Rican and Chicano" faculty, as well as in admitting students from those ethnic groups.

Her activism continued, apparently up to the moment she was appointed to the bench. She was a leader of the Puerto Rican Legal Defense and Education Fund (PRLDEF, now called Latino Justice), an activist civil rights group that frequently engaged in litigation and took positions that were far beyond mainstream legal thought in the United States.

Sotomayor has been a federal judge since 1992 and was elevated to the Second Circuit in 1998. Many of her most controversial statements (and all controversial decisions, of course) have been since she took the bench.

We know that she has proclaimed her racial and gender pride repeatedly and -- contrary to the most basic tenets our law and Constitution -- said that she embraces them in rendering her version of justice. And we know that she has been reversed by the Supreme Court in cases that raise serious questions about her judicial temperament.

Its time to ask tough questions and insist on complete and honest answers.

Here are five questions which Sotomayor should have to answer before her nomination is voted on by the Senate Judiciary Committee.

1. PRLDEFs Positions Outside the Legal Mainstream: For twelve years (1980-1992), Judge Sotomayor served in various legal and policy making roles in the PRLDEF. She was at times a member of their Board of Directors, Vice President, and Chairperson of their Litigation and Education Committees. In 1981, PRLDEF wrote to the Governor of New York that capital punishment represents ongoing racism within our society. PRLDEF also took the position that it opposes any efforts to overturn or in any way restrict the rights recognized in Roe v. Wade.

Question for Sotomayor: We know that you played an active role, frequently participating directly in the development of legal positions and strategies for PRLDEF. With respect to the 1981 letter on the death penalty and with respect to the opposition to Roe v. Wade, tell us precisely what your role was in developing each position and how you influenced its development.

2. Embracing Biases, not Facts: The Supreme Court only last month reversed Sotomayor in the New Haven firefighters case, Ricci v. DeStefano. In the lower court, the judge granted the defendant summary judgment, which meant two things. First, what the law (or the Constitution) says on an issue determines which facts are important to the case and which are not. When a court grants summary judgment, it means that there is no real dispute on the important facts, so no jury needs to decide what the facts are and the court can apply the law.

In Ricci, the district court granted summary judgment to the City of New Haven, saying that the important facts were not disputed and, on that basis, the white firefighters alleging that they had been discriminated against had no legal grievance.

Sotomayor (joined by two other judges) sustained the lower courts decision without comment on the facts or explaining their application of the law.

The Supreme Court reversed Sotomayors panel AND granted summary judgment to the firefighters, which means they found -- on the basis of the same facts -- that the firefighters had sustained a legal claim and that the city had no serious factual challenge to it.

In effect, the Supreme Court said that both the lower court and Sotomayor had based their judgments on the wrong set of facts.

In her 2001 Berkeley speech, Sotomayor said, Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Question for Sotomayor: In reviewing the District Courts decision in Ricci v. DeStefano, how did your gender and Latina heritage affect your choice of the facts on which to judge the case?

3. Second Amendment: In the 2009 decision in Maloney v. Cuomo, an opinion co-authored by Sotomayor, the Second Circuit upheld a law prohibiting the possession of a nunchaku, a martial arts weapon consisting of two wooden or steel rods connected by a rope or chain. Denying the defendants claim that his Second Amendment rights were violated, Sotomayors opinion said that it was settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose on the individuals right to bear arms. The Supreme Courts recent decision in District of Columbia v. Heller, the court continued, does not invalidate this longstanding principle.

Question for Sotomayor: In D.C. v Heller, the Supreme Court wrote that,

As the quotations earlier in this opinion demonstrate, the inherent right of self defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family and property is most acute. Under any standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most preferred firearm in the nation to keep and use for protection of ones home and family,would fail constitutional muster.

In light of that statement of the Constitutional law, do you believe a state or city which is not a federal entity can ban the possession of handguns?

4. International Law: Sotomayor wrote the foreword to Daniel Terris book, The International Judge published in 2007. In that foreword, Sotomayor wrote:

A proposed bill in Congress to prohibit the citation of foreign law in federal judicial decisions gave rise in recent years to a heated and extensive dialogue among American judges, academics and commentators on the appropriate role that foreign and international law should play in American constitutional adjudication.

But the question of how much we have to learn from foreign law and the international community when interpreting our Constitution is not the only one worth posing. As The International Judge makes clear, we should also question how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside of the law that affect our decisions.

Questions for Sotomayor:

(a) Specifically how, and to what extent, should international law or foreign law be considered in interpreting the U.S. Constitution?

(b) What can we learn from international courts and their judges about the process of judging?

(c) How shall we differentiate among the male and female judges to learn from them?

(d) And, specifically and most importantly, what factors outside the law should affect your decisions?

5. Does an Unborn Child Have Constitutional Rights? In her interview with Sen. Jim DeMint (R-S.C.), Sotomayor said that she had never thought about whether an unborn child has constitutional rights. How is that possible for a judge who has been on the bench since 1992? And how can that be reconciled with the actions of the Puerto Rican Legal Defense and Education Fund, which Sotomayor served as a prominent member from 1980-1992?

Question for Sotomayor: A child that is born is inarguably a person, and if that person is lucky enough to be born in the United States or come here later, he or she has rights under our Constitution. At some point in the pregnancy -- and we neednt debate when that occurs in this hearing -- we believe the unborn fetus achieves the Constitutional status of a person, and thus has rights. Without debating when that moment occurs, do you agree that at some point an unborn child has rights under our Constitution?

If Sotomayor is asked those questions, the answers should illuminate for all Americans the answer to the question of her fitness to serve on the Supreme Court, or the powerful court on which she now serves.

Teo Molin contributed research and reporting to this article.

I have read several articles which refer to Sonia Sotomayor as "Barack Obama's Harriet Miers". 

Harriet Miers, you may remember, was President Bush's White House Counsel, and was nominated by him to the Supreme Court.  It was a horrendous idea, it was dumped on early and often by the media (with great justification) and Ms. Miers did everyone - herself included - a favor by asking that her name be withdrawn from consideration.

But no such thing will happen here.  Sonia Sotomayor, as poor a choice as she is, has a huge Democratic majority to grease the skids for her -- and a compliant media that has done its usual highly competent job of looking the other way on behalf of Democrats, so that most people don't have a clue just how poor a choice she is.

In other words, get ready for Justice Sotomayor. Because unless something entirely unforseen occurs at these hearings, that is what we are going to have.


Ken Berwitz

Just when you think they can't go any lower, they prove you wrong.

Read this piece and see how advocates for Sonia Sotomayor are trying to turn Frank Ricci from a victim into an oppressor - for the crime of passing a promotion test and expecting to be promoted.

The depravity is from People for the American Way.  The bold print is from me:

Sotomayor backers urge reporters to probe New Haven firefighter

By Michael Doyle and David Lightman | McClatchy Newspapers

WASHINGTON Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who's at the center of Sotomayor's most controversial ruling.

On the eve of Sotomayor's Senate confirmation hearing, her advocates have been urging journalists to scrutinize what one called the "troubled and litigious work history" of firefighter Frank Ricci.

This is opposition research: a constant shadow on Capitol Hill.

"The whole business of getting Supreme Court nominees through the process has become bloodsport," said Gary Rose, a government and politics professor at Sacred Heart University in Fairfield, Conn.

On Friday, citing in an e-mail "Frank Ricci's troubled and litigious work history," the liberal advocacy group People for the American Way drew reporters' attention to Ricci's past. Other advocates for Sotomayor have discreetly urged journalists to pursue similar story lines.

Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he's dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised.

The Middletown-area fire department was subsequently fined for safety violations, but the Connecticut Department of Labor dismissed Ricci's retaliation complaint.

No People for the American Way officials could be reached Friday to speak on the record about the press campaign.

"To go after so sympathetic a plaintiff as Frank Ricci . . . is a new low in the politics of personal destruction," said Roger Pilon, the director of the libertarian Cato Institute's Center for Constitutional Studies. "If they were smart, they'd keep a low profile."

Ricci, though, has his own advocates, including conservative commentators such as CNN's Lou Dobbs and Fox's Sean Hannity.

Nor is he the only Supreme Court confirmation witness to receive sharp elbows. In 1991, for instance, then-Senate Minority Leader Alan Simpson of Wyoming warned that witness Anita Hill would be "injured and destroyed and belittled and hounded and harassed" if she testified against nominee Clarence Thomas. Hill was preparing to testify that she'd been sexually harassed by Thomas.

Hill's subsequent testimony threw into question Thomas's confirmation, during a hearing he likened to a "high-tech lynching." A closely divided Senate ultimately confirmed him.

The 35-year-old Ricci was the lead plaintiff in the case Ricci v. DeStefano, challenging New Haven's refusal to promote white firefighters after African-American and all but one Hispanic firefighters failed to score high enough on a promotion exam.

Sotomayor and a majority of the 2nd U.S. Circuit Court of Appeals sided with the city's claim that it was justifiably concerned about a potential civil rights suit being filed by the African-American firefighters.

"Sotomayor and her panel colleagues were bound by long-standing precedent and federal law," People for the American Way executive vice president Marge Baker said in a June statement. "They applied the law without regard to their personal views."

Last month, however, the Supreme Court overturned the 2nd Circuit by 5-4.

"Once . . . employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race," Justice Anthony Kennedy wrote for the majority.

With his awards for bravery, some 17 years of fire department service and history of overcoming dyslexia, Ricci has become a compelling human character in the Sotomayor confirmation drama. Senate Republicans have summoned him, along with Lt. Ben Vargas of the New Haven Fire Department, as two of their 14 witnesses next week.

Though even Republicans concede Sotomayor appears poised to win confirmation, the hearing and Ricci's part in them could be exploited politically. The case is symbolic of race-based preferences, which conservatives have long rejected.

"Affirmative action remains a potentially useful issue for the GOP," Rose noted, and "this case has the potential of perhaps mobilizing the Republican party again."

Republican Sen. Lindsey Graham of South Carolina added that many Americans can identify with Ricci, making him an especially attractive witness for the GOP and potentially dangerous for Democrats.

"He took on a second job and worked hard, but was denied due to the same legal concepts" that were designed to protect people's rights, Graham said.

Does it get more depraved than that? As a man with a learning disability, Frank Ricci filed a discrimination suit -- 14 years ago.  I don't know whether the suit was or wasn't justified (neither does People for the American Way).  But tell me:  what exactly did he do wrong?  Why is this being used to demonize him? 

And what relevance does it have to the fact that he WAS discriminated against (along with all the others who filed suit with him) in the case where Ms. Sotomayor's opinion was reversed?

If Sonia Sotomayor had any moral rectitude she would tell People for the American Way and their cohorts that, whatever else they do to help her get confirmed, this is absolutely off limits.  But she hasn't done that.

These people have no  scruples, no heart and no soul. 

But one thing they are going to have - they are going to have their Justice Sotomayor.  Count on it.

Zeke^ But ... But .... HOW can the MSM have time to dump on Frank RIcci ??? ... The MSM is too busy tearing into Joe the Plumber... Questions: 1) Is THIS what is meant by the "White House News Media" ? .... 2) Do the FACTS and LAW determine the validity of the Ricci case ... which is now SETTLED LAW. ... or is it the MSM attacks and distortions ? (07/12/09)


Ken Berwitz

How easy is it to stage a phony event?  How easy is it to get major news venueS to report the event as if it were real?

Here is your answer, courtesy of and a (now valued) site called

Friday, Jul 10

CNN Explains Honduras Reporting

CNN is responding to a claim that correspondent Karl Penhaul, who is covering the situation on Honduras, interviewed a man who'd already been accused of staging what was happening at a protest for "dramatic effect."

On Wednesday, the blog Legal Insurrection wrote:


Reuters ran a staged photo of a bloodied Honduran protester. Contrary to the clear implication of the Reuters story, the protester was not bloodied from the protests, but as reported by Hunter Smith at Honduras Abandoned, the protester deliberately wiped blood on his shirt from the ground in order to get photographed.


Now this same protester, identified as Juan Angel Atunez, has appeared in a CNN news report by Karl Penhaul in a bloodied shirt claiming that a child died in his arms.


It is unclear if a child died at the protests, as most reports state only one adult died. Regardless, Hunter's first hand observation of Atunez wiping blood on himself prior to being photographed and videotaped shows that Atunez staged his appearance and story for dramatic effect, which both Reuters and CNN buying into it.


Today, a CNN spokesperson responded to TVNewser:


CNN had two teams on the ground. We were present throughout the march. CNN staff saw and heard the shooting. The blogger says he was not present at the time the shooting took place. We interviewed a bystander who said he had held a child who was dying. At no point in our interview did the witness allege he saw more than one victim. At the time there was confusion about the age of the victim, who was passed through the crowd, bleeding profusely from his fatal head wound. Many bystanders and journalists initially believed from the size and appearance of the body that the victim was quite young, consistent with the witness's story.


CNN regrets that our report did not point out that we could not independently verify the man's account. Note that CNN carefully reported the official Red Cross death tally of one, but included the assertions from protestors that the death toll may have been higher, as did the blogger.

Let's remember, too, that Reuters and CNN have also been calling the legal removal of Honduras' President a "coup".

What a strange coup:  It is based on a legal ruling by the Honduran Supreme Court, the removed President's own political party agrees, his party remains in power (the military does not take control) and the scheduled elections in November will go on as planned.

But to these news venues, that is a "coup".  Just like Juan Angel Atunez is a victim and then a hero. 

What will he be next?  More importantly, what will Reuters and CNN say he is next?


Ken Berwitz

Burt Prelutsky is a Hollywood writer, and liberal-turned-conservative.

He is mad as hell, and he can't say he isn't going to take it anymore because he, like the rest of us, has a year and a half of the current congress and at least three and a half years of the current President to take.

But while he can't change things, he can angrily write about them.  I don't agree with all of what Mr. Prelutsky says, but I do agree with enough to post his column.

Here it is.

I'm Mad as Hell!

by Burt Prelutsky


Frankly, Im beginning to feel a lot like Howard Beale, the character portrayed by Peter Finch in the 1976 release, Network. He insisted that people get up right now and go to the window, open it, stick their heads out and yell, Im as mad as hell, and Im not going to take it anymore!

Ive always heard that misery loves company. If true, misery in America has more company these days than it knows what do with.

I realize that conservatives have felt this way ever since the Democrats nominated the Chicago crony of Bill Ayers, Jeremiah Wright, Tony Rezko, Rod Blagojevich and the assorted felons at ACORN, to be our president, but why arent millions of honest, decent, hard-working Democrats up in arms? I can guarantee that if a Republican president had done half the things that Obama has pulled off in his first half year, most of us on the right would be calling for his head. At the very least, none of us would be kissing his heinie.

Even before grabbing up car companies and banks, he got the ball rolling with a trillion dollar, 1100-page pork-filled stimulus package that had to be passed, he insisted, within a few short hours or America was going to be turned into a pumpkin. Well, without anyone having had time to read anything but the price tag, it was passed into law. Obama then took his own sweet time signing it. In the months since its passage, the unemployment rate has soared, entire states are going belly up and, apparently, nobody seems to know what happened to the money.

Then theres the Waxman-Markey cap and trade bill, which started out in life at a thousand pages, and then had a 300-page amendment tacked on to it in the dead of night. It was as if Dr. Frankenstein, after carefully inspecting his nightmarish creation, decided that what the monster really needed was a second head and a hunchback. Again, nobody had time to read the bill, but that didnt prevent 219 congressmen, including eight Republicans who scurried out from under a rock just long enough to make certain that Christmas, or perhaps I mean Ramadan, would come early for the President.

As I recall, when he was a candidate, Obama assured us that taxes would be decreased for 95% of all Americans. Inasmuch as the Heritage Foundation estimates that the cap and trade bill will wind up costing the average middle class taxpayer nearly $3,000 in additional energy costs, I guess a tax isnt a tax if you dont call it one. Of course Obama and Al Gore and their liberal lackeys dont mention the jobs that people in the oil and coal industries will lose while were busily building windmills. Perhaps those folks who were formerly occupied supplying the wherewithal so that America could continue to be a major industrial nation can be hired to stand around and generate energy by blowing at the windmills.

Maybe what Obama meant when he claimed wed be paying less in taxes was that wed all be on the dole before the next election rolled around.

During the campaign, when Obama vowed, if elected, he would create or save four million jobs, I speculated that he meant that if at some point there were four million Americans who were still working, he could say hed kept his campaign promise. I swear I meant it as a joke.

Inasmuch as Obama seems to be doing all he can to turn America into a left-wing third world nation, it stands to reason that he was far more perturbed by a military coup in Honduras than by innocent blood being spilled in the streets after a rigged election in Iran.

Its amazing, if you stop and think about it, that George H.W. Bush lost his bid for re-election because he was goofy enough to say, Read my lipsno new taxes, but Obama does his level best to bankrupt America and destroy the middle class, and yet continues to ride nearly as high in the popularity polls as Michael Jackson. Imagine if the man could moon walk.

But, I guess a lot of us who find ourselves going down the financial drain dont really mind so long as we can watch Prince Obama and his princess holding hands on their $250,000 date night in New York City.

Its almost enough to make a person pity Bernard Madoff. That poor shmuck got a 150-year prison sentence, and he only screwed Americans out of about 65 billion dollars.

Yep, this is an angry man. 

Does he have a reason for that anger?  You just read what he had to say -- you tell me.

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