By INVESTOR'S BUSINESS DAILY | Posted Thursday, May 28, 2009 4:20 PM PT
Justice: Sonia Sotomayor fits the administration's requirement for bringing empathy to the law. The problem is that it isn't always for human beings and law-abiding citizens. Fish gotta swim and criminals gotta vote.
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During his 2005 confirmation hearing, Chief Justice John Roberts said a judge should be like an umpire in baseball: Just call the balls and strikes and don't alter the rules of the game. And don't feel sorry for the first baseman.
As President Obama likes to say about the election, he won. He gets to pick judges who have "a little bit of a common touch and a practical sense of how the world works." He wants judges who he feels have compassion for the little guy, even if the little guy is a fish.
In a 2007 2nd Circuit decision, Sotomayor ruled the Clean Water Act required power companies that operate water-cooled power plants to use the "best technology available for minimizing adverse environmental impact" to prevent fish and other aquatic life from being sucked into vents and killed. Cost was not to be a deciding factor.
"This case is about fish and other aquatic organisms," wrote Sotomayor. It was not about the little guys working at these plants or their jobs or businesses or staying in business. It was about the fish. Fish outweigh people on her scales of justice.
Sotomayor sided with environmentalists who had sued the EPA because the agency permitted the use of cost-benefit analysis in determining the "best technology available." Had her decision stood, power companies would have had to spend billions more to comply, passing these costs on to their customers.
She ruled that "the EPA may consider cost as a factor to a limited degree, but only as to whether the cost of a given technology could be reasonably borne by the industry and not the relation between that technology's cost and the benefit it achieves."
In that decision we see activist judges who are ideologically motivated on the courts telling businesses not to make sound business decisions but, as Sotomayor has said, make decisions based on policies dictated by the courts.
The Supreme Court disagreed, and on April 1 it overruled her decision 6—3. Judge Antonin Scalia wrote for the majority that best technology may in fact "describe the technology that most effectively produces some good."
"We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards," Scalia wrote. "The Court of Appeals (and Judge Sotomayor)," Scalia ruled, "was therefore in error."
As if empathy for small aquatic organisms wasn't bad enough, Sotomayor also has judicial compassion for those who have passing familiarity with our courts — that class of downtrodden people known as convicted felons.
In most jurisdictions, convicted felons cannot vote alongside those they have raped, robbed or assaulted. Sotomayor believes that under the Voting Rights Act of 1965 felons can and should be granted the right to vote. They are a discriminated against group being denied their civil rights.
Hayden vs. Pataki was a case brought by one Joseph "Jazz" Hayden, who stabbed a sanitation worker to death. Mr. Hayden felt that shouldn't disqualify him from voting. In a dissenting opinion, Sotomayor agreed, arguing that Hayden and 5.3 million other convicted felons should be allowed to vote for those who write and enforce the laws they broke, even if their victims no longer can.
In her dissent, Sotomayor said Section 2 of the Voting Rights Act "by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to its coverage." Sotomayor believes that any voting qualification, such as bans on convicted murderers voting, is a violation of the Voting Rights Act.
We wonder if she also believes these convicted felons should have their Second Amendment right to keep and bear arms restored? Be that as it may, we may soon have a judge who believes felons should vote and businessmen trying to stay in business should, well, go fish.