We’ve seen it before, we’ll see it again, and it goes something like this: a Supreme Court candidate espouses radical views throughout her career; same candidate is nominated to the U.S. Supreme Court with White House assurances that she is a moderate; during her confirmation hearings, candidate undergoes a “confirmation conversion” and no longer holds the same radical views; once on the Supreme Court, candidate returns right back to her old ways. We saw it with Sonia Sotomayor. We’ll see it again from Elena Kagan.
Let’s walk through the steps of Sonia Sotomayor’s confirmation conversion. First, the radical views. As a Second Circuit judge, Sotomayor espoused such extreme views in the controversial case of Ricci v. DeStefano that even Clinton-appointed judge José Cabranes found it shocking, and the U.S. Supreme Court later overturned her decision. Then there was the egregious Second Circuit case of Maloney v. Cuomo where she held that the Second Amendment right to bear arms only applies to the federal government. And her infamous “A Latina judge’s voice” speech at Berkeley: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Second came the White House assurances that Sotomayor was not, contrary to her own words, a judicial activist, but was “a nonideological and restrained judge.”
Third, Sotomayor’s confirmation conversion during her Senate hearings: “No, sir, I wouldn’t approach the issue of judging the way the President does. Judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law.”
But once safely confirmed to the nation’s highest court, Sotomayor was back to her old ways, casting her first Supreme Court vote to join three other liberal justices in an unsuccessful effort to stop the execution of a hit man in Ohio. And in direct contradiction to what she espoused during her confirmation conversion, Sotomayor joined these same justices in using foreign law to interpret our Constitution in the case of Graham v. Florida.
As for Elena Kagan, her radical views have been well-documented, including her senior thesis where she found the decline of socialism in the United States to be “sad,” as well as her decision to kick the U.S. military off of Harvard’s campus during a time of war. Then we heard all of the usual White House assurances that Kagan is not Obama’s gal. Next, we will witness Elena Kagan’s miraculous confirmation conversion during her Senate hearings, where she will try to distance herself from her own words and actions. And if Kagan is not challenged on her disingenuous confirmation conversion, and is allowed on the Supreme Court, we should all know by now what will happen next.
Let’s hope Abraham Lincoln was right when he said, “You may fool all the people some of the time, you can even fool some of the people all of the time, but you cannot fool all of the people all the time.” Fool us twice, shame on us.
Mia Reini is a policy specialist in Notre Dame, Indiana and an attorney licensed to practice in New York, Massachusetts and Washington, D.C. All opinions expressed are her own.
