Posted on February 13, 2014



Bye, Fidelity

Law, shmaw, says Justice Sotomayor


Daniel Clark



Five years ago, during the confirmation hearings for her Supreme Court nomination, Sonia Sotomayor pacified skeptical Republican senators by declaring that her guiding judicial philosophy was “fidelity to the law.”  Given the controversy at the time about her having said that it’s the judiciary’s role to create policy, this newfound devotion of hers was obviously fraudulent.  To anyone who had failed to recognize this, however, her recent remarks during a speech at Yale must be terribly confusing.

Sotomayor was asked why, in her written opinion in the 2009 Mohawk Industries, Inc. v. Carpenter case, she had referred to “undocumented immigrants” instead of “illegal aliens,” the legally correct term that had consistently been used in prior Supreme Court rulings.  “To call them illegal aliens seemed and does seem insulting to me,” she said.  “I think people then paint those individuals as something less than worthy human beings and it changes the conversation.”

“Illegal alien” is a perfectly applicable legal term that is used repeatedly throughout Title 8 of the United States Code, the body of federal law that deals with immigration and citizenship.  The proper use of that term does not “change the conversation,” but rather sets the boundaries within which a responsible conversation may take place.  The justice’s preferred term, “undocumented immigrant,” is factually inaccurate and legally meaningless.

For one thing, not all aliens are immigrants.  An immigrant is someone who enters the country for the purpose of taking up permanent residence.  A person who sneaks into the U.S. to earn money, with the intention of taking it back to his home country, does not fit that description.  The word “alien,” meaning a person who belongs, and owes allegiance to, another country, is correct regardless of whether that person hopes to remain here or not.

It’s one thing for political operatives to spout inanities like “there’s no such thing as an illegal person,” but a Supreme Court justice should not engage in that kind of sloganeering while writing a legal opinion.  An alien who’s in the country illegally is an illegal alien, just like the law says he is.  To call him “undocumented” is a deliberate attempt to help him evade responsibility for his own actions.  That terminology portrays his willfully illegal act as if it were a mere oversight, or else as an innocent mistake like losing one’s keys.  That’s about as credible as if every illegal alien made a point of saying “oops” on his way across the border.

The law says otherwise.  The law says that an illegal alien is responsible for his own violation of our immigration laws, and thus is subject to a maximum of six months’ imprisonment.  Sotomayor doesn’t have to like that, but her acceptance of the legal reality of it should not be optional.

Attempting to form sound legal opinions out of insubstantial rhetorical mush like “undocumented immigrants” is like trying to make a snowball out of cottage cheese.  It only makes sense once you realize that the effort is insincere, and that the aim has been to make a muddle of things all along.

There’s no fun for a judicial activist like Sotomayor in recognizing clarity in the written law, because by doing so, she would remove herself as the main factor in the outcome.  She’ll be the first to tell you that it’s not the objective facts that matter, but the personal feelings of the judge who observes them.  In her widely cited 2001 speech at Cal-Berkeley, she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Notice that she doesn’t concern herself with reaching the truth, or the legally correct outcome, but only with arriving at a subjectively defined “better conclusion.”  From a liberal viewpoint, this is a self-fulfilling prophecy, because an agent of “diversity” like herself cannot help but arrive at a “better conclusion” than the inherently inferior white male stick figure to which she compares herself.  Therefore, her entirely inaccurate references to “undocumented immigrants” are a “better conclusion” to the recognition of them as illegal aliens, even if they are demonstrably false, as far as the law and the English language are concerned.

Still, not everything that Sotomayor says is completely without merit.  Take, for example, her belief that white men tend to arrive at poor conclusions, and then look at how many of them voted to confirm her nomination.  Case closed.



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