Right Wing Watch: In Focus | July 2009 |

Themes from the Right — Nomination Day


Right-wing political and legal groups and pundits responded to President Barack Obama’s nomination of federal appeals court Judge Sonia Sotomayor to the U.S. Supreme Court by cranking up their well-funded attack machine, following their pre-fab attack script (they have been attacking her for months as a potential nominee), launching ads against her confirmation, and threatening to use the nomination as a political bludgeon against Democrats from more conservative states.

Among the themes of the Right’s attacks on the day her nomination was announced:

  • continuing the Right’s shameless distortion of President Obama’s stated desire for judges with the character trait of empathy along with excellent legal qualifications and commitment to the rule of law
  • decrying the naming of the first Hispanic Supreme Court nominee as “identity politics” while accusing Sotomayor of racism for talking about drawing on her life experience as a Latina woman
  • repeating anonymous claims that Sotomayor doesn’t have the intellectual ability to serve on the Court, despite graduating at the top of her class at Princeton and serving on the law review at Yale
  • distorting the Ricci case in order to portray her as a political activist when in fact she was part of a court majority that followed legal precedent
  • name-calling with the standard arsenal of right-wing insults for judges who do not hew to the Scalia-Robert-Thomas-Alito ideological standard and insisting thatSotomayor is a radical judicial activist
  • dismissing her initial appointment to federal courts by the President H.W. Bush by claiming that President Bush was “forced” to make the nomination by then-Sen. Moynihan
  • threatening to use the issue of guns and the Second Amendment to turn the nomination into a political weapon against Democratic senators from more conservative states

Below is a sampling of right-wing response on the day of the nomination.


As People For the American Way Foundation’s Right Wing Watch In Focus reports have documented before, right-wing activists and pundits have for months painted a ridiculous caricature of President Obama’s stated desire for judges who understand the impact that their decisions have on the lives of ordinary people.Well before Sotomayor’s nomination, right-wing leaders insisted that President Obama would pick judges based on their willingness to ignore the Constitution and law and vote entirely on their personal feelings.That line of attack – you can’t call it reasoning – continued on the day Sotomayor was nominated.For example:

  • Focus on the Family’s judicial analyst Bruce Hausknecht: “The President’s professed desire for judges with ’empathy’ rather than impartiality might deny the country what the Founding Fathers intended and wrote into the Constitution – judges who dispense justice without regard for the status of any party that comes before them.”
  • Gary Bauer of American Values: “Sotomayor’s appointment proves what we already knew – that President Obama is committed to packing our federal courts with activist judges who will make policy according to their ‘feelings’ rather than the requirements of the Constitution.”
  • Fox pundit Glenn Beck: “Hey, Hispanic chick lady, you’re empathetic; she says ‘yeah,’ they say, ‘you’re in.'”
  • Former GOP presidential candidate Mike Huckabee: The notion that appellate court decisions are to be interpreted by the ‘feelings’ of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.”
  • Bush administration torture apologist John Yoo: “President Obama’s nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House.
  • On Fox News, Attorney Anthony Holm: “Empathy and strict interpretation of the law are mutually exclusive.”

'Identity Politics' and 'Racism'

Some right-wing pundits dismissed Sotomayor’s nomination and approach to the law as “identity politics.” According to a story by the American Family Association’s One News Now “news” service, “Curt Levey of theCommittee for Justicebelieves Obama ultimately picked Sotomayor for no other reason than he felt tremendous pressure to select a woman and a Hispanic. Levey says the pick surprised him, but was consistent with the president’s desire to appoint an empathetic judge.”

Some activists have insisted that comments she made at a speech in which she praised the value of the wisdom and life experience a Latina woman would bring to a judgeship were racism, or reverse racism. Those remarks have been reported as ‘Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.’

  • Concerned Women for America’s Wendy Wright called this statement “her announced bias for certain people.”
  • Focus on the Family said that she “disregards the notion of judicial impartiality.”
  • Rush Limbaugh said she is a “racist” or at least a “reverse racist.”Fox News commentator Glenn Beck also called the comments racist.
  • George Will: “And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender or sexual preference is, and members of a particular category can be represented — understood, empathized with — only by persons of the same identity.”

Right Wing 'Activist' Boilerplate and the Ricci Case

Wendy Long of the Judicial Confirmation Network has previously staked out a position at the far fringe of credibility by saying that the current Supreme Court is dominated by liberal activists.She made sure that nobody could outflank her by repeating that assertion, and released a long rhetorical attack on Judge Sotomayor.President Obama pointed out that Sotomayor will bring more judicial experience to the Supreme Court than any of the sitting Justices did when they joined the high court.So far, right-wing spokespeople are focused on just one case that they are relentlessly hammering in a distorted fashion: the New Haven firefighters case, Ricci v. DeStefano.As Media Matters has noted, many pundits have mindlessly repeated right-wing claims that the case shows her to be a results-oriented judicial activist.The truth is that Judge Sotomayor was on a unanimous panel of judges who concluded that there was legal precedent that required them to reach their decision.

Others repeated the expected right-wing name-calling.

  • Rush Limbaugh called her “racist,” a “horrible pick,” and “the antithesis of a judge.”
  • Rep. Tom Price (R-GA), the chair of the House Republican Study Committee: “President Obama might label her philosophy as ‘moderate,’ but Judge Sotomayor has made a habit of embracing extreme views during her time on the lower courts.”
  • Wendy Long, JCN: “Judge Sotomayor is a liberal judicial activist of the first order who things her own personal political agenda is more important than the law as written.”
  • Mike Huckabee again: “The appointment of Sonia Sotomayor for the Supreme Court is the clearest indication yet that President Obama’s campaign promises to be a centrist and think in a bi-partisan way were mere rhetoric. Sotomayor comes from the far left and will likely leave us with something akin to the “Extreme Court” that could mark a major shift. [Huckabee’s statement originally referred to Judge Sotomayor as “Maria.”]
  • Ed Whelan of the Ethics and Public Policy Center told Glenn Beck that President Obama “wants judges who will impose his own left wing views rather than do the dirty work of getting them enacted into law.”
  • Long again: Sotomayor’s nomination was Obama carrying out his “threat” to nominate “liberal judicial activists who will indulge their left-wing policy preferences instead of neutrally applying the law.”
  • Family Research Council’s Tony Perkins: “…Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench.President Obama promised us a jurist committed to the ‘rule of law,’ but, instead, he appears to have nominated a legislator to the Supreme Court.”
  • More Perkins:”President Obama has chosen a nominee with a compelling personal story over a judicial pick with a solid constitutional judicial philosophy. A compelling personal story is no substitute for allegiance to the Constitution and its sound application to public life.
  • The Traditional Values Coalition’s Andrea Lafferty: “Judge Sotomayor fits the ’empathy’ qualification. During a law conference, she has openly bragged that she views her role as a judge as a policymaker and activist who will impose her leftist political views on the rest of us. She may have empathy for the poor, gays and minorities – but she is likely to ignore the U.S. Constitution and the rule of law.She is clearly the ideal nominee for President Obama but will be a disaster for our legal system.”

Some of the Right’s “activist” charges were based on comments made as part of a panel discussion at Duke University Law School in 2005, where she talked about the importance of the appeals courts, mentioning that is “where policy is made,” with right-wingers promoting a You Tube snippet of her remarks.That was fodder for a huge amount of right-wing fulminating, much of which did not include her following sentence that she did not advocate for judges to make law.

  • Perkins: “With all due respect to Judge Sotomayor, our Constitution states otherwise and public surveys indicate that the American public understands this constitutional principle and want judges who interpret the law and do not act as life-tenured judicially empowered social workers.”
  • Focus on the Family: “From what we know about her, though, Judge Sotomayor considers policy-making to be among a judge’s roles, no matter what the law says.

Politics and Guns

Right-wing activists were saying even before the nomination that they would use a fight over any Obama nominee to try to score political points in red states.Richard Viguerie made the case for a political fight over the Sotomayor nomination: “This is an enormous opportunity for conservatives to define President Obama as a radical liberal in a way that Republicans have so far failed to do so.”

A couple of right-wing activists made the political threat more explicit, and tied it to the Second Amendment and gun control.

  • Ken Blackwell, with the Family Research Council and the American Rights Union called Sotomayor’s nomination “a declaration of war against America’s gun owners and the Second Amendment to our Constitution. If gun owners mobilize and unite, it’s possible (though unlikely) to stop this radical nominee…President Obama has nominated a radically anti-Second Amendment judge to be our newest Supreme Court justice. “There are a number of pro-Second Amendment Democratic senators from deeply red states, including Mark Begich from Alaska, Jon Tester and Max Baucus from Montana, Ben Nelson from Nebraska, Byron Dorgan and Kent Conrad from North Dakota, and Tim Johnson from South Dakota. “These senators will jeopardize their seats if they vote to support an anti-gun radical for the Supreme Court. Second Amendment supporters will now be up in arms over this radical anti-Second Amendment nominee, and you should never underestimate the political power of American gun owners.”
  • Ken Kuklowski of the American Civil Rights Union:
    As a senator, Barack Obama fought against voting on John Roberts and Sam Alito, so he can hardly demand that the current Senate rush this process. But President Obama must push for a quick vote, because allowing the nomination to go into August would imperil it. The reason for this danger is one word: guns. As recently reported, Judge Sotomayor is one of only three federal appeals judges to say that the Second Amendment does not stop your city or state from banning all guns, even in your home. In other words, Judge Sotomayor says that a ban like the D.C. gun ban struck down by the Supreme Court last year is constitutional if enacted by a city or state.
    There are a number of senators who are pro-gun Democrats. These senators, like Mark Begich in Alaska, Montana’s Jon Tester and Max Baucus, and Ben Nelson from Nebraska, could be in serious political trouble if the exceptionally pro-gun voters in their state find out about Judge Sotomayor’s beliefs about gun rights. If this nomination goes into August, there could be as many as ten Democratic senators that would be under enormous pressure to oppose confirmation. The result could be a huge defeat for President Obama.