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July 17, 2009



Sotomayor has ruled on several high-profile cases. In 1995, she issued a preliminary injunction against Major League Baseball which ended the 1994 baseball strike. Sotomayor made a ruling allowing the Wall Street Journal to publish Vince Foster's final note. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals for the Second Circuit. Her nomination was slowed by the Republican majority in the Senate, but she was eventually confirmed in 1998. On the Second Circuit, Sotomayor has heard appeals in more than 3,000 cases and has written about 380 opinions. Sotomayor has taught at the New York University School of Law and Columbia Law School.

Dan Artz

"One would think that a conservative, being generally for "federalism" and devolution of matters to the states, would prefer to have his state legislature or judiciary address the right to bear arms as it is regulated in his state."

Well, Jon, I can't speak for all conservatives (I'm really more of a libertarian, myself), but My own belief that the Second Amendment is and ought to be incorporated through the 14th Amendment to be binding upon the States begins and ends with the Privileges or Immunities Clause of the 14th Amendment, and the universal understanding among those who passed the 14th Amendment out of Congress, as well as among the States that ratified it, that that Clause was designed and intended to make the entire Bill of Rights (including specifically the Right to Keep and Bear Arms) binding upon the States. Indeed, one of the very ills which the Privileges and Immunities Clause was designed and intended to remedy was the practice of the Southern States, during and after Reconstruction, to forceably disarm freed slaves so that they could not defend themselves against armed bands of whites like the Klu Kluc Klan, and so they could not rebel against Plantation Owners who would force them, at the point of a gun, to sign "labor contracts" which essentially placed them back into slavery in all but name.

Yes, I am fully in favor of Federalism, and I think Congress, with the aid of a lax Judiciary, has expanded its powers far beyond anything ever contemplated for a "limited" federal government, but that Federalism is explicitly tempered in several places throughout the Constitution, including, for example, the restrictions upon States prohibiting them from burdening interstate or international trade by port duties, the prohibition on interstate compacts that are not approved by Congress, and by the 14th Amendment's Due Process and Privileges or Immunities Clauses. Simply because I support Federalism does NOT mean that I reject all limits on State Soveriegnty; those explicitly provided in the Constitution are entitled to be enforced, and that includes the Second Amendment, as incorporated through the 14th Amendment.

Jonathan Hudis

At what point do we return to a Senatorial confirmation process for Supreme Court nominees in which the Senate's "advice and consent" turns upon an examination of candidates' records, qualifications and experience, rather than upon predilections based upon politically or philsophically held views?


I'm endlessly amused by "conservatives" who are infuriated by Judge Sotomayor's refusal to incorporate the Second Amendment against the states.

One would think that a conservative, being generally for "federalism" and devolution of matters to the states, would prefer to have his state legislature or judiciary address the right to bear arms as it is regulated in his state.

Of course, the same conservative would probably lambaste a judge for reading "extraconstitutional rights" into the Constitution--but have no problem with the evolution of some level of "federalism" that is absolutely required by the document (but explicitly spelled out nowhere within it).

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