Kmiec: Sotomayor’s experience trumps all

If you think that Judge Sotomayor’s nomination wasn’t planned to be another wedge between Catholics with a clear identity and those who are rather on the Catholic Lite side, here is Doug Kmiec’s take in the, where else, National Catholic Reporter, the ultra-left’s favorite outlet.

My emphases and comments.

Judge Sotomayor’s experience trumps all

Sooner or later the Catholic faith of Judge Sonia Sotomayor will be raised as an objection to her nomination and appointment to the Supreme Court of the United States.  [As I read this a warning bell goes off.  What Kmiec means when he uses "the Catholic faith" and what, for example, I mean may be very different.  This is part of the ongoing battle over our Catholic identity.  You have to watch their terms.  Let’s keep reading and see where Kmiec takes this.  I suspect he will try to lead us down the wrong path using all the right language (in the wrong way).]

Judge Sotomayor is a moderate. [Another term.  She is a "moderate" which means she is not an "extremist".  For Kmiec, only extremists think that the right to be born is important enough to defend that other issues take a logical second place.  "Moderates" don’t have one-issue litmus tests.] As a consequence, she is just as likely to be attacked from left as from right. [Kmiec, unlike the McBrien types, will admit that there is an extreme left.] That’s probably not what President Obama means by common ground, [Yah?  How can we know what he means by "common ground"?] but one can admire him for finding a woman seemingly so capable of adhering to the law rather than her personal opinion, and for on occasion, even resolving cases contrary to the president’s own policy perspectives.  [I do not pretend to be a legal scholar as Prof. Kmiec is.  But I have heard that a lot of her decisions have been overturned on appeal.  Is that a sign of her ruling according to the law?]

One possible objection to Judge Sotomayor from the left will be her Catholic faith. There are already five Catholics on the court, it will be said. When the court upheld Congress’ limits on the partial-birth abortion ban, there were more than a few grumbles that it’s just those Catholics having their way. Completely unfair. Anyone who actually read the opinion knows different.

There is an implicit understanding [?] that the church’s admonition to its faithful to change the law permitting the choice of abortion is best understood and applied in light of the scope of office. Catholic legislators make policy and could be so instructed, but as Justice Scalia posited, "a judge has no moral responsibility for the laws his nation has failed to enact." So let’s put this canard to rest.  [I looked at Kmiec on Scalia on this blog.]

But it wouldn’t be a confirmation proceeding unless someone on the right also attempted to make an issue of abortion as well. [So… no one against the left would be motivated to make an issue of abortion?] That’s more than unfortunate given how 99.9 percent of the court’s work has nothing to do with the subject, and given the present stasis of you jurisprudence, even .01 no doubt overstates the likelihood of the Court moving either way on that topic.  [Again, I am not a judicial scholar.  I wonder how what percentage of cases was represented by, say, Marbury v Madison that year, or Dred Scott v Sanford, or Brown v Board of Education, or Griswold v Connecticut were in those years.  Whatever percentage of the case load of SCOTUS in that year, those were landmark cases which changes the course of American jurisprudence and therefore society.  I think that, even though this is an imperfect world, politics should be the social foreshadowing of the City of God, regardless of the numbers game.  Furthermore, progressivists are always going by polling data, when they are in conflict with Church teaching.  Is that what just happened here?  These cases are a small percentage, therefore they are proportionately less consequential?]

Nevertheless already this morning a pro-life blog has this entry:
    “Sotomayor will likely draw opposition from pro-life groups, although her limited record on abortion may not be enough for strong opposition from Republican lawmakers or to earn her a filibuster in the Senate.”

In the old days of the Reagan administration, [This is a little devious: he invokes a name important to the conservative right.] it was thought embarrassing to have a single issue litmus test. It still should be, but it borders on the absurd to oppose a nominee because she has not had occasion to rule upon a particular subject. It’s even more absurd, since what she has said illustrates her integrity as a judge.  [I don’t know what she says on the issue or abortion.  But I nevertheless think that it is important enough that people should make an issue of it!  If she identifies herself as a Catholic I think it is fair to ask if she believes that there is a fundamental right written by our Creator into being to life, before liberty and the pursuit of happiness.]

It is well known to the readers of this publication [NCReporter] that President Obama has reversed the Mexico City policy. This Bush administration policy limited family planning money to overseas nonprofit groups. Contrary to far too much misreporting, the reversal does not result in federal taxpayer support for abortion, but it does allow federal money to float to organizations that use their own resources for that purpose[?  And that is different… how?]

[Be careful with this part..] If you applied for a federal job and were told that you could have it so long as you voted the straight Republican ticket, you might think that an unconstitutional condition — in essence, an improper leveraging of federal resource to have you sacrifice your free-speech rights. [And while wrong, how would anyone be able to verify this?] Frankly, that’s a tough issue in [… start to hold breath here as you read…] knowing where the government is wrongfully using its funds to penalize you for your point of view …[b[]reathe here along the way…] differentiates from where the government is expressing its own opinion [… GASP…] is often treacherous territory. It’s also territory where the distinctions are so thin that it would be easy for an activist judge to insert her own personal policy perspective.

[And now we get closer….] So when the Mexico City policy was challenged in front of Judge Sotomayor ["in front of Judge Sotomayor"….] some years ago as a violation of free speech by pro-choice advocates, it would not have been surprising to see an outcome striking down the policy.

That’s not, however, what Judge Sotomayor did. Judge Sotomayor’s approach to the case was entirely objective. Relying upon the previous precedent of her circuit, which had rejected a similar claim, Judge Sotomayor faithfully turned away the claimed free-speech violation on the merits and rejected others on the basis of federal court jurisdiction that the parties lacked standing (a fussy, usually conservative [?!?] favorite for keeping judges from encroaching legislative turf) in so far as the only harm alleged was to foreign organizations and not to the plaintiffs. [Soooo… I don’t quite get it.  Is bad to to to stop judges from encroaching {on} legislative turf.  HEY!  Wait.  Experience trumps all.]

On the main issue, Judge Sotomayor noted what could not be denied [I love this phrase.  I am reminded of a canon law class back in the bad old days when we were very pointedly taught how to establish contra legem custom.] from Supreme Court precedent: namely, that “the government,” in her words, "is free to favor’s antiabortion position over the pro-choice position with public funds."

President Obama did not select Judge Sotomayor for her judicial outcomes, but for her experience. [Odd… I would think that her record as a judge might mean something for her qualifications.] Referencing Oliver Wendell Holmes and his famous aphorism that the life of the law is not logic but experience, President Obama not surprisingly is admiring of a life that has gone from a single-parent family in a South Bronx housing project to the top of her Cardinal Spellman high school class, Princeton University and Yale Law School.  [But… is she a good judge?]

In terms of legal training, the opposition will find it difficult to find any omission in preparation — the prosecution of dozens of criminal cases as an assistant DA in Manhattan; a partner in a major New York firm dealing with highly detailed and complex intellectual property and commercial litigation; a trial judge for six years showing a meticulous attention – and yes empathy[How does one measure that, btw?] for the factual record as it affects real human lives, and an appellate judge for 11 years where she participated in over 3000 decisions and authored roughly 400.

It’s doubtful that anyone has totally catalogued all of these cases and no doubt they will be flyspecked. Yet, my preliminary review is that this is a woman who cares deeply about justice, both when the facts cry out for it – as in her favorable view of asylum cases of Chinese women who experienced or were threatened with forced birth control, and when the facts do merit special consideration, as when churches and religious associations are trying to maintain their own internal procedures without state interference.

Of course, this woman is from New York, and at the risk of enormous stereotype of the Empire State, those of us on the West Coast have always noticed a certain – well, curt efficiency[Is that what she was using in the case if the CT firefighters?] in the New York personality. This is not likely to play as well as the bon vivant boyish charm of John Roberts, but hey, we can’t all smile pretty. [At the very end he descends to being… what is the best word… catty?]  And as we say in Malibu, Have a Nice Day!

Kmiec is chair and professor of constitutional law at Pepperdine University and author of Can A Catholic Support Him? Asking the big question about Barack Obama (Overlook Press/Penguin).

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
This entry was posted in SESSIUNCULA, The Drill, The future and our choices and tagged , , . Bookmark the permalink.


  1. Jeff M says:

    I’m tired of the Left referring to the abortion issue as a “litmus test.” The litmus test isn’t the nominee’s opinion on abortion, but on the significance of the law, and the role of judges in defining it. Roe v. Wade was an egregiously bad decision. It enshrined in the Constitution a right to abortion, a right which simply isn’t there. It was grounded in the equally fictitious “right to privacy,” a right found not in the actual text of the Constitution, but in its “emanations.” A potential justice who believes it is acceptable to insert or edit the text of the law simply because of some metaphysical emanations is not fit for the highest court of the land. A “pro-choice” nominee could easily say: “yes, I support a right to abortion, but Roe v. Wade was poorly reasoned and badly decided, and until the people decide to amend the Constitution, there will be no such right.” The “litmus” test is adherence to the rule of law, that’s it.

  2. Al says:

    So says Chief Water Carrier for the Baby Killing Party and the Recipient of the Grima Wormtongue award for Excellence in Divide and Conquer Catholicism.

  3. TJM says:

    Kmiec is a totally sell-out. What does the left have on him – compromising photos? There is no way that anyone with any intellectual honesty would call this appointee a “moderate.” She is a hard core lefty, for whom empathy for certain groups trumps the rule of law. Tom

  4. Michael E says:

    Putting aside the merit of this article (it has no merit), it strikes me that it could have been much worse than Judge Sotomayor, given some of the other names being floated about. The system gives the President the power to appoint judges– we are stuck with that.

    But the issue of her being a poor Catholic (if true) is therefore kind of a red herring. Frankly the thought of having 6 Catholics, 2 Jews, and 1 Protestant on the highest bench tickles me.

  5. Judy says:

    One thing I learned in law school is that when the law isn’t on your side, argue the facts. I think abortion advocates know this and hope someone with “empathy” will take the facts into greater account when deciding cases–that’s how Roe and Doe happened. Pray for conversion of hearts!

  6. Drew says:

    I don’t get it. Why do people like Kmiec go on being Catholic (or at least saying they are) when they have so much difficulty with Church teaching? I’m not saying that to be mean… I just don’t understand their reasons for sticking around. Are they being paid by Planned Parenthood or something? Seriously, if they really are Catholic, what is their motive for tearing apart what they hold most dear? By separating the faithful from the Bishops, all you would have left is Protestantism.

  7. Denise says:

    Has anyone actually seen where Judge Sotomayor claims to be Catholic? All I am seeing is others are saying she is Catholic. She is very quick to classify herself as Latina and as female and indicates these qualities will influence her perspective. It seems to me, if she is Catholic, she would find that an influential qualifier as well. I am Hispanic. I am female. I am Catholic. I am a doctor. Of the first three, my Catholicism influences my medical practice far more than my ethnicity or my gender. I am not really worried about whether Judge Sotomayor is Catholic or not. However, it muddies the meaning of a Catholic identity if everyone who has a Catholic grandmother is called “Catholic”.

  8. Joe says:

    Kmiec’s article echoes many talking points being rolled out to the effect that Sotomayor may be a reverse Souter:

    Is this a real fear on their part, or a smoke screen?

  9. The Astronomer says:

    I speculate that Kmiec is currying favor with the Obama Administration as one of those beloved ‘moderate’ Catholics the President can do business with….

  10. Sharon says:

    Oversimplified, but Catholic is as Catholic does. I don’t see her doing anything to identify her as a Catholic, or that she wants to be identified that way.

  11. thetimman says:

    Aren’t his fifteen minutes up yet?

  12. PS says:

    Beyond your point-by-point refutation here, Father, I think the very argument he is trying to make is bad. I think is that Kmeic is trying to articulate is that 1) Sotomayor voted to uphold the Mexico City Policy not because of anything to do with abortion but because the case for overturning it was wrong, 2) therefore, insofar as she upheld the policy and Obama overturned it, he cannot be looking for ideological puppet, a “yes woman” on the bench 3) therefore it must be something else. 4) What it turns out being, he has decided, is her “experience” which, per Kmeic’s initial review of some cases is right-minded.

    He may be right about 4, but he never tells us why he has come to this conclusion (only that it might be a good conclusion at which to wind up). 2, though, fails to make any sense to me. The President overturns the Mexico City Policy in 2009. Sotomayor upholds the policy on what Kmeic concedes to be a technicality in 2002. At this point, and he gives no other embellishment on this argument, Kmeic has failed to show sufficient cause. The President overturned the policy, and she uphelf it, not on its own merit, but because there was never a good reason presented otherwise. To suggest that she would have overturned the policy on such shoddy grounds as provided wouldn’t just be activism, it would be insanity.

    Add on to this, the fact that the Mexico City Policy is, per his own words, only indirectly, at best, about abortion. Why then, does this show that there is any discord between the two? _His whole point is that the purported differences of opinion on the Mexico City Policy indicates that she isn’t an activist “party-line” judge and then goes on to talk about how the issue isn’t really important, anyway._ This article doesn’t just come across as scattered, but scatter-brained.

  13. Peggy says:

    If Kmiec has meant her professional experience as a judge, prosecutor, lawyer, etc., he’d have been quite right. Alas, …I guess Kmiec thinks himself inferior to Sodameyer as a mere white male?

  14. JC says:

    Sotomayor did not just vote to support Mexico City Policy. She supported Chinese people who were seeking refugee status on the basis of forced abortion policy. She also voted to support pro-life demonstrators against a state law forbidding them from protesting in front of abortuaries.

    It is so common for Supreme Court nominees to surprise the presidents who appoint them. In the _Roe_ era, it has always worked against the pro-life movement. Maybe, for once, Divine Providence will permit it to wokr in *our* favor?

    It’s also commonly said that junior Justices tend toward the most dominant philosophical voice on the Court, and that, at present, is Scalia (though Sotomayor has more experience as a federal judge than any Supreme Court pick in recent memory).

    Her speeches are Far left, but she claims to be a strict constructionist. Her *rulings* tend to be based upon a strict constructionist interpretation, legal precedent and even states’ rights, but with a liberal “agenda” (e.g., she rules strongly for free speech, etc.) For example, after the S.C. ruled that the Second Amendment *does* apply to individuals, Sotomayor ruled in a weapons case that the S.C. had not yet determined the Second Amendment applied to state laws (so, she used a strict constructionist, states’ rights argument to promote a liberal cause).

    Some of the other rulings which conservatives are carping about tend to be more human rights based. For example, some blogs are criticizing her for a ruling against strip searches of school students, where the case involved school officials using strip searches as a means of subtly molesting teenaged girls, arguing that they could be hiding contraband in their primary and secondary sexual organs.

    We keep hearing the argument that, by being too “negative” we lose people. Sotomayor may very well be an ace in the hole for the pro-life movement, especially in regard to any pro-life related cases we’re likely to see in the near future.

    I don’t agree that Republicans should roll over and accept any Obama nominee, but we’re not going to get anything better from Obama than this. It’s highly likely that she could be convinced to accept the pro-life argument on at least some cases–so long as she isn’t alienated by a lot of unsupported vitriol.

  15. EDG says:

    Sotomayor’s statements – that she will decide based on “empathy” because of her condition as a Latina (whatever that may be) and a woman – are definitely troubling, because both of those blocs have a strongly pro-abortion agenda. While Hispanics in general may not be pro-abortion, people who call themseves “Latino” and are associated with that odious organization “La Raza” are basically 100% owned by the Ford and Rockefeller foundations and their population agenda, which includes abortion.

    The decisions that some people have mentioned sound harmless enough, but the fact that 60-80% of her decisions have been reversed on appeal indicates that she’s not doing her judgments on standard legal grounds. (However, I don’t know the general average of reversals for a judge.)

    The only thing I can say on her behalf is that she does not seem to define herself as Catholic. She attended Catholic schools, but doesn’t seem to want any connection with the Church now and so far she is not waving this flag, the way Pelosi did, for example. But of course, the fact that she was even marginally Catholic was without a doubt one of the reasons she was chosen, and it is being seized on by Kmiec, our favorite Judas, to be used in his ongoing attack on the Church and his campaign to elevate Obama to some position way beyond the sphere of a government official.

  16. John6:54 says:

    So how can we the, average citizen, quicken the defeat of the National Catholic Report? What can Bishop Finn do to stop its use of the word Catholic? Because its anything but Catholic.

  17. RBrown says:

    I don’t know enough about Sotomayor to favor or oppose her nomination. I do know, however, that with the Dems controlling the Senate, she is a shoe-in unless she slips up and says something that will offend common Dem dogma–and she won’t

    And I do know that Souter and Kennedy were considered locks to overturn Roe–and that the engine behind Roe was Brennan.

    I also wonder whether certain people like Biden hope that Roe is overturned, which will de-Federalize the entire abortion question.

  18. I commend her rise to a Supreme Court nomination but not her interpretation of the Constitution.

    She is an inspirational story but is too left for my taste.

  19. Jose says:

    We can’t equate political conservative with catholic. I am a traditional catholic, but I am not pro-gun, I believe in civil rights, I’m ok with affirmative action. Does that make me less of a catholic? That’s the way people put it, and it worries me. We are making traditional catholicism look like right-wing republican. And again, it worries me. That said, I vote based on the abortion issue, because it trumps anything else. I vote for people with whom I do not agree 99% of the time, because they are pro-life and not pro-death, but I still disagree with them in other things. Does that make me less of a catholic?

  20. jpoppe says:


    It is very easy to determine for yourself if you are a good or bad Catholic, the church makes it very clear, examine your propely formed conscience. What most people get confused with is the question of whether or not they are good Americans, and that is always open to debate.

  21. TerryC says:

    I consider myself politically to be a strict constitutionalists. I don’t believe that being a strict constitutionalists is at odds with being an orthodox Catholic. I also don’t believe that in and of itself not being a strict constitutionalists makes anyone not an orthodox Catholic. There are many issues of social justice which are open to prudential judgment. I would think that affirmative action is such an area, though I think I could make a good argument that it is detrimental to human dignity over the long term. But that would be in some ways an argument based on subjective evidence and I am the first to admit that it might not apply in all cases in all places.
    I don’t believe, based on what I have read, that Sotomayor is what most people here would consider a practical Catholic, that is one who actively practices her Catholic faith. For one thing I have heard the statement that she attends Mass during family gatherings and on holidays. Someone who does not regularly fulfill their Sunday obligation is not really a practicing Catholic. Do we know if she was even ever Confirmed? The mere fact that one is divorced is not a barrier to being a practicing Catholic, even if remarried, since annulments are not, nor should they be in most circumstances, public.
    As a nominee for Supreme Court Justice I’m much more interested in whether she is a strict constitutionalists or not. I suspect not, because as someone has already stated, Roe vs. Wade is bad law. Support of Roe vs. Wade immediately paints the supporter as a supporter of judicial activism. This is completely apart from the subject of the decision, abortion. The Constitution has no “right to privacy” clause. Any judicial decision based on such a non-existent clause is judicial activism. Since Obama (indeed any pro-abortion president of either party) is only likely to nominate a judge who will support Roe vs. Wade the chance that they will ever nominate a judge who will only rule based on the Constitution is nonexistent. This of course extends beyond the abortion question and effects all decisions which come before the court.

  22. Kevin says:

    ‘[A]s Justice Scalia posited, “a judge has no moral responsibility for the laws his nation has failed to enact”.’

    I am not going to criticize Scalia personally, as I do not
    know him, but I will criticize this statement. The obligation to obey the law is a moral, not a legal one. Otherwise, it would be a circular argument: “It is against the law to be against the law”. Likewise, the obligation of a judge to enforce the law is part of that same moral system.

    The elevation of obedience to law above other, prior moral obligations, such as the Fifth Commandment, is an example of the logical fallacy known as misapplication of a principle (the misapplication being the failure to recognize those principles that are prior in the process of reasoning).

    The statement quoted above is a source of scandal to Catholics in the legal and judicial professions. I would advise anyone who feels incapable of acting morally in these professions for fear of losing the living they hope to make from them, to give up the profession.

  23. Be Truthfull says:

    Your statement below is not truthfull

    “But I have heard that a lot of her decisions have been overturned on appeal. Is that a sign of her ruling according to the law?”

    Fox News has been complicit in this misinformation and I’ve noticed you rely on Fox News to be informed. This was debunked by Rachel Maddow at MSNBC and is also debunked at below

    The misleading statistic used against Sotomoyor is a 60% reversal rate but that rate is actually below average and moreover, largely irrelevant. As the White House and have noted, Justice Alito, using that same statistical rubric would have had a 100% reversal rate when nominated for SCOTUS. The fact that no one on the right pounced on Alito for that when too many on the right have misleadingly pounced on Sotomayor suggests that too many on the right have exchanged truth for political expediency, much like how the Roman authorities are portrayed in scripture.

Comments are closed.