The conservative maverick, Senator John McCain in a flagrant disregard of the plain words of the First Amendment passed a bill into law that criminalized political free speech. A conservative Congress passed it and a compassionately conservative President Bush signed it into law. In a majority opinion written by Justice Anthony M. Kennedy, the Supreme Court in Citizens United v. Federal Election Commission ruled that the statute violated the First Amendment and struck it down. Justice Kennedy writing for a conservative majority held that “If the First Amendment has any force “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Justice Sotomayor, during the course of her confirmation, in terse, repetitive and well-rehearsed responses testified to conservative principles she did not respect. Predictably, she sided with the dissent and would have upheld the criminalizing of the First Amendment protections of political free speech. She also joined the dissent in McDonald v. Chicago in which the Supreme Court held that the Second Amendment protects an individual’s Second Amendment right to keep and bear arms against a municipal gun ban. She wrote: "I can find nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes."
Again, in Holder v. Humanitarian Law Project, the Supreme Court upheld a federal law that makes it a crime for Americans to provide “material support” of any kind – be it in the form of cash, weaponry, training, personnel, services, or “expert advice or assistance” – to a foreign terrorist organization, even if that support is for ostensibly peaceful purposes. Appellant’s attorney Fred Fertig claimed incredibly that the First Amendment protects material support of terrorists where the donation is made for peaceful purposes. Chief Justice John Roberts rejected Appellant’s attempt to cloth the support of terrorism with the dignity of First Amendment protection. Justice Roberts wrote that “even seemingly benign support” for such an entity “bolsters the terrorist activities of that organization”; “frees up other resources within the organization that may be put to violent ends”; “helps lend legitimacy to foreign terrorist groups”; and strains “the United States’ relationships with its allies.”
Justices Antonin Scalia, Clarence Thomas, Samuel Alito, Anthony Kennedy, and John Paul Stevens joined in the decision. Justice Sonia Sotomayor, however, joined the dissent agreeing with Fred Fertig’s theory that the “material support” restriction violated the First Amendment.
“A look at Fertig’s background and affiliations will help place his disappointment in proper perspective. First and foremost, Fertig is president of the Humanitarian Law Project (HLP), an organization created by Los Angeles real estate magnate Aris Anagnos, who since the early 1970s has bankrolled Marxist causes around the globe — including the Nicaraguan Sandinistas, the Marxist rebels in Chiapas, and the regime of Cuban dictator Fidel Castro. Over the years, HLP has consistently sided with America’s Marxist adversaries in international disputes; has accused the U.S. of committing “atrocities” in both Iraq wars; has called for the United States to be prosecuted for its alleged war crimes by the World Court; and has identified American disarmament as a chief prerequisite for peace around the world.”
Predictably, in a well rehearsed stiffing of questions intended to disabuse Congress and the people about her “empathetic” approach to the interpretation of the Constitution, Justice Sotomayor now has a lifetime in which to prove to the world that a sensitive ethnic nature and an empathetic ideology trumps the once lawful interpretation of the Constitution.
It is difficult to decide which is the more obscene: The giddy soft ball questions asked by fawning senators, Democrat and Republican or Ms, Kagan’s vapid responses. Senator Tom Coburn, an exception to this criticism, asked Ms. Kagan whether under the commerce clause the federal government could command that every citizen eat three fruits and three vegetables every day—to which Ms. Kagan replied that while the law was dumb she saw no reason why it should not be enforced. Totalitarian power, it would appear, is not anathema to this “constitutional scholar.”
The President himself, in an effulgent testament to the celebration of judicial anarchy announced that he would measure the merits of his Supreme Court justice to a brand new standard of constitutional interpretation, empathy, that is, as the Oxford Dictionary defines it, “the ability to understand and share the feelings of another.”
How interesting: Here are plaintiff and defendant now before the Supreme Court—after years of oppressive litigation, presenting a question that will affect the lives of all Americans. Using the Oxford definition of “empathy” one might well ask with whom will the gods of empathy share and understand their mutual feelings. Will it be plaintiff or defendant? The statue of Justice blindfolded is intended to convey symbolically that a judge must not share feelings and understanding with one of the parties. The law, and not empathy, must be, as it has always been, decisive. A Justice must be impartial because— not to put too fine a point on it—no one should win a case because the Justice shares a particular feeling or belief with the victor. The law defines such empathy as bias and prejudice.
President O’bama, in his invention of a new species of constitutional construction characterized by the “sharing of understanding and feelings” has abandoned not only ancient and universal judicial principles but also political candor. Why political candor? Because both Justice Sotomayor and Ms. Kagan share a leftist ideology more than mutual sentiments of empathy. In fact, empathy is simply one in a long line of euphemisms used to camouflage radical ideology.
It is now the President’s too familiar literary tactic to coin words that are so magnificently elastic he may apply whatever meaning to the words will fit the defenses or ambitions of the moment. His announcement, for example, that troops will leave Afghanistan July 11, 2011, as the war deteriorates, does not at all mean that troops will actually begin leaving on that date. The words now mean they will begin the engagement of a “transition.” And so it goes.
In the invention of empathy as a new principle of constitutional Interpretation— one nowhere to be found in the Federalist Papers, or the Constitution— the President, a “Constitutional Scholar” if we are to accept his election propaganda, does not define its meaning or application to a specific case. We may well believe that there is no distinction to be made between judicial empathy as the President envisions it and the President’s ideology, radical and statist, that is pushing America to the brink of bankruptcy, as her prestige and security are remorselessly diminished by international weakness, indecision and self abasement—an ideology which is progressively corrupting freedom, liberty and the rule of law.
It is no coincidence that Ms. Kagan, a liberal activist, has practiced with her handlers the pugilistic arts of the bob and weave, the duck and Mohamed Ali ropey-dope with Congressional questioners, this from a lawyer who wrote a piece criticizing other Supreme Court nominees for precisely this tactic. So far she has raised against public revelations of her constitutional inventions a nearly perfect lack of experience; and the same stonewall raised by Justice Sotomayor.
Ms. Kagan has never heard a shot fired in anger, that is, she has never prepared or tried a single case, or served as trial or appellate judge. In her rare appearances before the Supreme Court, her arguments to the presiding justices were more the stuff of quackery than legal analysis. Indeed, Ms. Kagan announced a new judicial invention: that the government possessed the power to “redistribute” free speech, presumably so as to create an ideological harmony more to Ms. Kagan’s liking. Justice Roberts considered the theory “startling and dangerous.”
The same Democrats and President who gave a standing ovation to President Philippe Calderon for his castigation of the state and citizens of Arizona and who now approve a lawsuit the Justice Department will soon file against Arizona and its citizens, now seek Ms. Kagan’s appointment to the U.S. Supreme Court. The stones of Rome should rise up in mutiny.