Is There A LAWYER in the House?

Like most of us who are getting older and feelng the effects of aging, I've come to realize that I am not the invulnerable superhero I've always believed myself to be. In my younger years I would have to be bleeding profusely from a gunshot or knife wound, or have a bone protruding through my skin to feel the need to see a Doctor. Now as I glide towards my golden years, I realize that the need to be able to seek quality health care is no longer the luxury it once was. Consequently I took it upon myself to make sure that I had health insurance so that when the inevitable aches and pains of later life set in, I would be covered. Little did I think at the time that it would be dealing with that selfsame health insurance company that would be the CAUSE of many headaches. This is because I, like so many others do, assumed the insurance company was my PARTNER in health, not the ADVERSAY to it that it turned out to be.

Insurance companies are private, profit-driven enterprises. This means they must take in more than they pay out in order to maintain profitability and thereby viability. In a market that is faced with a shrinking number of people paying premiums and ever-increasing health care costs, this has become a real existential battle for the survival of the industry. Every insurance company employs a battery of both lawyers and accounts because every decision on a claim is run through a model of risk/reward, cost/benefit analysis. To pay or not to pay, that is the question. If an insurance company opts NOT to pay a claim, there are risks inherent in that decision.

Most states have a state run insurance commission headed by a commisioner to help mediate conflicts between an insurance company and an insured over a disputed claim for coverage. If the insurance company can show legal or contractural cause for the denial of the claim, however slight, the insurance commissioner will usually side with the insurance company. Once it has done so, most states then allow for an insured to prosecute a case in civil court for breach of contract, bad faith refusal to pay a claim, or malfeasance against the insurer, but such claims are highly unlikely to succeed, and the lawyers and bean-counters of the insurance company know this. The out-of pocket costs to the insured to pursue these remedies is also often prohibitive, and the insurance company lawyers and accountants know this as well. Consequently, more and more claims are routinely being denied by insurance companies resulting in mounting health care costs to consumers, growing losses to doctors, and increases in fees for both medical services and insurance premiums in a vicious and self-perpetuating cycle. This is just one way lawyers, and to be fair, accountants are impacting health care costs. The other, and for more onerous way is in the area of tort law known as medical malpractice.

In the interests of full disclosure, let me state that I used to make my living as a paralegal and as such, I have worked for law firms that represented both Plaintiffs and Defendants in malpractice cases. I say this so you understand that I am not a layperson and that I have a foundation in both education and experience to support my hypotheses in this article, and that is what these are. That said, when I was a rookie paralegal fresh out of college I was working at my first firm in Los Angeles. This firm specialized in representing plaintiffs in tort cases, including medical malpractice. I remember going into the library to do a bit of research and finding a medical journal on the conference table. The journal was open to an article about the effect of medical malpractice lawsuits on the medical profession, and I remember reading a statistic that said something to the effect of "two out of every ten doctors practicing today can expect to see the inside of a courtroom in their professional lifetimes."

Cut to the future some thirteen years or so and you find me at the end of my paralegal career working for a defense firm in beautiful downtown Atlanta, and I'm looking at another medical journal article on the same subject. Only this time, the statistic reads more like "3 out of every 5 doctors in practice today will likely be sued for medical malpractice." That's an increase of 40% in less than fifteen years. What accounts for that dramatic increase in malpractice lawsuit filings in so short a time? I don't have the definitive answer to that, but I DO have a few ideas.

For one thing, when I first started in the professon, malpractice was a highly specialized area of tort law practiced only by the most successful and venerable of trial lawyers. These were the kinds of lawyers that drove the Mercedes and BMWs, wore the thousand dollar suits, carried the aircraft aluminum briefcases, and worked in highrise luxury office suites. It had to be that way because it was very expensive to successfully prosecute a malpractice case. Expert witnesses, jury consultants, etc were all very expensive and if you wanted to get the multi-million verdict, it cost a lot of money to prepare your case for trial. It was also hard to even get a case initiated because you had to have an affidavit from a doctor to attest that there was malpractice committed. This wasn't easy to come by since doctors used to abide by the old Reagan rule, "Thou shalt not speak ill of a fellow Republican" or doctor, in this case.

After I moved to Atlanta and took the job with an insurance defense firm, I noticed that more than a few of the cases that crossed my desk had been filed by the type of lawyer I categorize as "Andy the Ambulance Chaser." You know the type I'm referring to. The middle aged frumpy man with a suit that hasn't been pressed since the day it came off the hanger in the store, shoes that are scuffed, with the heels worn round, and soles that look like they've walked 100 miles, driving an old four door sedan with dings and rust spots, and practicing law out of a store-front in a strip mall located off the frontage road behind a Stuckey's restaurant. These are the classic "turn-em and burn-em" lawyers whose practice is mainly personal injury cases of dubious merit, and the whole intent is to get a quick settlement from the insurance company without having to expend too much time, effort, or energy. This type of lawyer does not typically take on a medical malpractice case because it's just too much work.

I asked one of the partners how an "Andy the Ambulance Chaser" type lawyer could pursue a medical malpractice claim and he advised me that the only reason it was now possible was that a cottage industry had sprung up in the medical community. Doctors in their late 40s and early 50s who were fed up with hazards of the practice of medicine, practicing defensive medicine, dealing with HMOs and PPOs, etc. decided to take early retirement and quit treating patients. However, these doctors did not go south to Florida to sail their boats, play golf, dodge hurricanes, etc. Instead they adopted an "if you can't beat 'em, join 'em" mentatlity and opted to sell their services and expertise to the legal community as expert witnesses and consulatants. This enabled lawyers like "Andy the Ambulance Chaser" to gain access to a "hired gun" to get his opinion letter and jump into the arena that had previously been off his radar.

Even so, "Andy the Ambulance Chaser" isn't desirous of taking his cases all the way to the "twelve in the box," referring of course to a jury trial. He's still in the "turn and burn" mentality of negotiating a quick settlement for what we in the defense term "nuissance value." "Andy" knows the "cost/benefit, risk/reward" formula that insurance company bean counters use to decide whether to try or settle a case, so he makes enough of a nuissance of himself time after time to get settlement offers on his cases. Consequently, he is able to take on multiple cases, regardless of their merit, and the insurance company passes these costs down to the doctors via higher malpractice insurance premiums. The doctors in turn pass these higher premium costs onto their patients via higher fees, and the patients feed the higher fees to their insurance companies resulting in higher health insurance premiums, etc., and the wheel goes round and round.

In addition to the "Andy" lawyers out there, there are the big guns like former Senator and filanderer John "Hairdo" Edwards. Now these are guys of TV and movie legend that stand in front of the jury box and make the women swoon and the men think they've found a new best friend. This kind of lawyer tugs at the heartstrings of a jury and gets them to redistribute millions of insurance company dollars to the grieving widow of "Roger the Roofer," a middle-aged, overweight, hard drinking, chain smoking roofer who just happened to have the good fortune to die on the operating table of a renowned cardiologist, thereby attracting the attention of the firm of Dewey, Screwum & Howe, which employs the wunderkid "Edwards" and makes a cause celebre out of the overindulgent roofer that he would never have been had he merely survived his quaduple bypass operation. Never mind that his lifestyle LED to that operation, or that under the new Obamacare, he probably wouldn't be able to GET that operation, he is now the focus of considerable weeping and hand-wringing in a dog-and-pony show that is solely for the benefit of an audience of "twelve in the box." And the jurors lap it up and reward the "pretty boy" lawyer with the insurance company's millions like it was nothing.

Now if those jurors could only hear "pretty boy" talking about them at the trial prep meeting in his swanky highrise office the night before, it would be VERY different story, because most lawyers think of the average juror as someone "too stupid to get out of jury duty." They also regard inner city jury pools as the "money pits" or "honey pots" because the average resident comes with a lifetime's worth of liberally induced class warfare propaganda and can't wait to "stick it to the rich" doctor or insurance company. The irony is that he's only sticking it to himself and others like him, because insurance companies don't PAY this judgment, they COLLECT it from their customers, namely other doctors. This results in ALL doctors having to pay higher premiums for their malpractice insurance. The next time that juror goes to see his or her doctor, that doctor will pass along the increased costs of his malpractice insurance to that juror and the rest of his or her patients. Finally, when that juror submits the higher medical bill to his or her insurance company either the claim will be denied and he or she will be stuck with the higher bill, or the claim will be paid, and the juror will get a notice in the mail a few weeks later informing him or her that his OWN insurance premium will be going up. You've got to love the irony in THAT.

This calls to mind a scene from the movie adaptation of John Grisham's book "Runaway Jury" in which Gene Hackman plays a hard-bitten, cynical and RUTHLESS jury consultant. He's in the courthouse men's room with Dustin Hoffman who plays the plaintiff's lawyer, a frumpy, rumpled schulb who's in reality anything but. In the scene, the lawyer expresses his confidence that he's going to win the case, and Gene Hackman's character responds with something to the effect of : "So what if you do. Nothing's going to change. He's still dead. The only thing that will change is when the widow goes to visit his grave, she'll drive to the cemetery in a more expensive car, and when she's walking to the gravesite and she snaps a heel on the cobblestone walk, the heel will come off of a much nicer shoe. All the rest is just colored bubbles." Cynical, yes, but truer words were never spoken. And yet, when President Obama stood in front of an auditorium full of doctors talking about health care reform, he stated that he did NOT favor any cap on medical malpractice verdicts. Why on earth would anyone truly interested in reforming the healthcare insurance system say that?

The answer is very simple and was revealed in technicolor when both the House and Senate rolled out their 1000 plus page healthcare reform bills and in those mountains of paper, revealed their intent to create a government run insurance company to compete with those in the private sector. Now, if memory serves, we already HAVE one of those. It's called Medicare, but they want to create a whole new government entity to compete against companies like Aetna, Blue Cross Blue Shield, Kaiser, etc. Afterwards, President Obama stood in front of his "pet" reporters and asked how such a public company could drive the private ones out of business. I noted he had his little "I know something you don't" smirk on his face as he asked this because he knows the answer all too well.

Private insurance companies have to be profitable to survive and even more so to thrive. In a nutshell, they must take in more money than they pay out. A public company, however, has no such requirement. Look at any government run business such as Amtrak, the Post Office, Medicare, etc. and you will find more red ink on their books that you'll find drops of water in the Red Sea. This is because public companies are backed by the full faith, credit, and printing presses of the US Government. They CANNOT fail. Additionally, most American businesses are protected from such disparities by federal Anti-trust laws that prevent price fixing and other unfair business practices. One of the only two exceptions to this protection is, ironically enough, the INSURANCE industry.

So here's where the rubber meets the road. By allowing the abuses of the legal system to continue to affect the healthcare and insurance industries, the government is basically guaranteeing that the private sector insurers will NOT be able to compete effectively against a public company. Remember that private companies have to remain profitable so they can't pay out more than they take in, and they have no control over things like litigation that drive up their costs, so they have no choice but to pass these costs on to the consumers. If the consumer sees a public company that will save them an appreciable amount of money on their health insurance, they're going to defect like lemmings. As these defections become more massive, you will see private insurance companies closing their doors and declaring bankruptcy until the government run company is the only one left standing. It's human nature to save money, especially when you're dealing with a federal government bent on sucking it out from our wallets like a hoover vacuum cleaner. If you doubt this, visit your local Wal-Mart sometime. It's a living illustration of the point.

Now that the government will be the only source for healthcare insurance coverage left in America, some things will happen very rapidly. First, the trial lawyers will be told the party's over and reform and verdict caps will happen. The government will do this because now it's protecting its' OWN assets. Second, the same Geithner gestapo that's controlling pay for Wall Street executives will turn its focus to our doctors and they'll be told what they can charge going forward. Makes sense that the government should control doctors pay since they're the ones paying them, right? Maybe, but I doubt that the average doctor will like being told he's going to make the salary of a mid-level government bureaucrat for the rest of his life. I further doubt that students trying to decide on their career choices are going to want to pursue a medical career that requires four years of college, four years of medical school, an internship, and residence only to find at the end of all that work that he or she will make less then an assistant manager at JC Penny assuming of course, there still IS a JC Penny chain that survives Obama-nomics. If we cannot recruit qualified applicants to our medical schools, what will we do next? We'll either have to incentevise students or lower the admission requirements, resulting in less competent professionals being responsible for our healthcare, not unlike what happened to our military when we were forced to lower recruiting standards to allow convicted felons to serve because we couldn't get enough bodies otherwise.

Most of the doctors in practice today are older men and women who will be retiring soon, and there are not a lot of new ones coming along to take their places. There will be even less of them entering the profession going forward because the financial incentive to pursue the career, given all the work and expense it will take, will be gone. People talk about the fear of rationing of health care, and they're right. When you have increasing demand, and dwindling supply, it's an inevitability. How that care will be rationed is something only the government knows, but my guess it will be something along the lines of how old you are, and how many productive years of tax paying you have ahead of you. Look out Seniors. Logan's Run may soon be a realty for you, although I don't think even THIS government will try to actually KILL you. They'll just make sure you only get the pain medicine or medical marijuana you need to keep you quiet while you wait to shuffle loose the mortal coil. Forget the quadruple bypasses, hip replacements, knee replacements, etc. that you're getting now, though.

I don't make these predictions as if I have a crystal ball because I don't. What I DO have is eyes to see, ears to hear, and a brain to think with. Is it an accident that we have almost as many people LEAVING this country these days as we have trying to get into it? Is it a coincidence that our insurance companies are trying to ship patients to India to have surgeries today because the cost is about ten percent of what it here, and if so, why is that? Most Indian doctors and surgeons were educated and trained in western countries, including the United States. They do their medical school, internships, and residencies here. Given that we have a serious shortage of doctors in this country, why would they choose to leave? They are given preferential treatment with regard to getting green cards and they can surely find jobs in our hospitals and clinics, and yet they choose to leave as soon as they complete their education and training.

I asked a friend about this one time and he told me that he saw what our doctors go through with the HMOs, PPOs, malpractice suits, etc. and he would NEVER consider staying here and putting up with all that. Furthermore, he told me that India has an emerging industrial economy not unlike our own following the end of World War II. What he is saying, in a nutshell, is that there are better opportunities available in India than there are here, and this was before the prospect of nationalized healthcare emerged on the horizon. He left to return to India more than 6 years ago. Why then would heart surgery cost $10,000.00 there and $100,000.00 here? Maybe it's because we're only training Indian doctors here, not their LAWYERS.

To summarize, every country that has undertaken to socialize medicine is full of horror stories. We have horror stories here, too, but they mostly involve INSURANCE coverage issues. Let's not overreact here and throw the baby out with the bathwater. We DO need some reform in our health care INSURANCE industry, but NOT in the actual practice of medicine. Let's keep doctors in charge of healthcare, not lawyers or government bureaucrats. We'll all feel better. If all of this has given you a headache, remember what the doctor says: "Take two aspirin, and call me in the morning." If congress does what it wants to do, you can still get two aspirin because they sell those at your local grocery store. However, when you try to call the doctor in the morning, you're going to be on HOLD for a long, long time.

Here Comes Da Judge!

I had just started writing this piece when a friend on mine asked if it were not redundant in light of my previously released piece, "His-PANIC" which addressed some of the concerns about the nomination of Judge Sonya Sotomayor to replace retiring Justice David Souter as an Associate Justice in the Supreme Court of the United States. I replied that while there were similarities, the previous piece, "His-PANIC" dealt with the racial factors inherent in the nomination and how both Republican and Democratic senators should handle the confirmation hearings about this nominee. With this article, I'm addressing the role of judges and justices in general in the interpretation and enforcement of laws that make the framework for the rule of law that is so essential to the structure and foundation of our democratic republic.

In the interest of full and fair disclosure, and because some of what follows will come across as being somewhat esoteric, let me preface the following by saying that I come by my knowlege of legal and judical practice and procedure very honestly. In addition to having a bachelors degree with a pre-law concentration, I also have the benefit of over ten years of experience working as a litigation paralegal. Additionally, I had the benefit of having as a mentor, a close family member who served as a Circuit/Superior Court Judge for more than thirty years. I also had the pleasure of cultivating personal friendships wtih judges of both the elected and appointed varieties as a result of my political activities over the years. Accordingly, my opinion on these subjects is more than the average layman's opinion.

Like most of the country, I first heard the name Sonya Sotomayor when she was first floated as a potential nominee to replace retiring Supreme Court Justice David Souter. When I first saw a photograph of her, I knew that identity politics were in play. I also knew that she would have a compellling story, and that she would he a highly qualified jurist, because the democrats are all about the rule of law, or more to the point, the MANIPULATION of the law to suit their political ideology. Democrats have been using the court system for DECADES to force laws and policies on this country our legislators (and the VOTERS who elect them) never intended. Republicans have joined in this practice more recently. By packing courts with "ringer" judges that will rule in accordance with the wishes of politicians, but enable them to avoid political liablity for these acts, the politicians are using the judiciary as "unelected legistlators," a role for which the judiciary was NEVER envisioned or intended by our Founding Fathers as set out in the U.S. or State Constitutions

The Supreme Court was established in Article III of the United States Constitution. Article III, Section II defines the juridiction of the Supreme Court and provides a framework for the kinds of cases the Court may hear and determine. The Court first asserted its jurisdiction in the landmark case of Marbury v. Madison, which established the precedent for judicial review of laws passed by the Congress and their compliance with the Constitution. The whole rationale for the Supreme Court was that the framers of the Constitution understood that an elected President and Congress could collude to pass laws that would enfringe on the rights and liberties of the citizens, and could become every bit as tyrannical as the British King Geroge we had just sent packing. They also understood that elected legislators and Presidents would be beholden to their electorates, and the whims and caprices of the passions of the moment, because they were all about getting elected and re-elected. Politicians, therefore, must sometimes subordinate their better judgment to satisfy the demands of voters, who sometimes do NOT think about the long term effect of their acting on their momentary passions.

Every elected politician and government appointee from the President down to the newest enlistees in the armed forces takes an oath the "support, protect, and defend the Constitution of the United States" prior to their entry into office or commencing their service. Sadly for us, some of them shed that oath the second they enter their offices and start promoting their social ideologies and political agendas which are sometimes CONTRARY to that very oath. When this occurs, it is to the judicial branch that We the People must look to preserve our rights and liberties. The framers of the Constitution understood this, foresaw it, and for this reason, built the judiciary to be free of the caprices of contemporary politics. Accordingly, once appointed, a federal judge or supreme court justice can serve for the remainder of his life, or as long as he or she so desires and cannot be removed unless they are impeached by the house and found guilty in the senate of serious criminal wrongdoing. This is NEVER happened to an associate justice of the Supreme Court and very RARELY happened to any members of the federal judicial branch. The most recent example I can think of is the case of Federal District Court Judge Alcee Hastings, who is now a serving member of the House of Representatives.

Though the office of a Federal District or Appellate Court Judge or Supreme Court Justice is not a political one, per se, candidates must be nominated and confirmed by elected politicians. These politicians look for judges and justicies that are sympathetic to their political and social ideologoes and agendas because they look to the courts to provide cover and in some cases to take on the role of legislators to protect the politicians from the wrath of the voters when laws may be unpopular with their constituents, but nonetheless support the politicians political or social ideological beliefs.

There are two kinds of judges or justices one can expect to see on the bench. The ones that read into the Constitution and legislation what they choose to support their own political or social beliefs are colloquially referred to as "activist" or "liberal" judges or "legislators from the bench." The other kind of judge or justice is the one that actually reads the Constitution or the law for what it says in black and white and doesn't attempt to read "into" it, his or her own personal politcs or ideas of "social justice" or "empathy." These are referred to as "strict constructionists" or sometimes "conservative" judges or justices. Sadly, there are far more of the former, than the latter sitting on our courts today. At a time when our rights to property, and even life itself, have never been more precarious due to the behavior of an elected President and Congress who have abandoned their oaths of office the second their hands came off the Bible, We the People have never been more dependent on a judiciary that actually FOLLOWS the Constitution as the framers wrote it and intended it. We are faced with government tyranny and corruption as never before and the stakes have never been higher.

In the weeks leading up to the senate's judiciary committee hearings, I did extensive research on the more recent rulings of the Hon. Sonya Sotommayoras well as some of her earlier decisions on the district court bench. I reviewed my research with friends in the legal profession, as well as active jurists and found that her rulings are both fair, and supported by statutory and case law precendents. Her judicial record is both impressive, and conservative though I would stop short of actually calling her a "strict constructionist." Likewise, I do not consider her remarks made at hispanic organizational meetings to rise to the level of indemic racism, and further consider attempts by politcians and political pundits to brand her as a racist on par with David Duke of the KKK, to be neither warranted nor accurate. I was particularly offended by a photoshopped representation of her in Grand Dragon's robes. I guess the election of our first black president hasn't moved us to that post-racial nirvana we were led to believe it would.

A very wise man, a career jurist, and my childhood mentor once told me that I should refrain from drawing a conclusion or making a judgment until it was absolutely necessary to do so. He went on to say that when it WAS necessary, that I should only make my judgment with the evidence of my own eyes and ears and not to rely on the reporting of others. If the past election cycle coverage has taught me anything, it is NOT to trust any so-called journlist for a fair and objective reporting on any political or social issue ever again. To that end, I did my own research and reading of Judge Sotomayor's judicial opinons, discussing them only with men and women more qualified than I to analyze them. I also sat through every agonizing second of the dog and pony show that passed for the Senate Judiciary Committee hearings on CSPAN so as to avoid the spin applied by reporters and political pundits alike. Despite numerous temptations to change the channel or pop in a DVD, I watched virtually every second of the speeches, the questions, and most importantly the ANSWERS to make my own independent evaluation of Judge Sonya Sotomayor and her fitness to be the next Associate Justice of the United States Supreme Court.

When all was said and done, I arrived at two distinct, and (some might argue) disparate conclusions, or such was the consensus at my Toastmaster's Rountable group discussion earlier this week. The first conclusion was that the Hon. Sonya Sotomayhor is a very impressive woman with a personally inspirational life story, an impressive ciriculum vitae as both a lawyer and a jurist, and that she is in every way highly qualified for the office she aspires to enter. I also believe that she will, in fact, be affirmed to that position for both political and social considerations. While I don't wish to opine that she is an "affirmative action" candidate, I will not hesitate to state that her nomination is the result of the "identity politics" for which both political parties have become renowned in recent memory. Conservatives, anxious to avoid a repeat of the Robert Bork debacle, nominated Clarence Thomas to the Supreme Court believing that the Democrats would risk the support of the African-American community if they attacked him too viciously as they had Robert Bork. But for the emergence of the Anita Hill sexual harassment charge, his would have been a relatively passive and successful nomination and a political victory for conservative republicans. He did manage to get confirmed despite the best efforts of senate democrats, and I firmly believe that with Judge Sotomayor, history will repeat itself.

This, too, is the case with the nomination of Judge Sotomayor, and the Democrats have even gone so far as to verbally warn Republicans that they proceed against this nomination at their own peril, meaning they risk losing any support from the Hispanic community if they are perceived to have a bias against Judge Sotomayor for any reasons that can be deemed to be racial. When the facts fail, resort to the racism charge. In point of fact the Republicans have bent over backwards to avoid any racial component in their questioning of Judge Sotomayor, with the exception of asking her to explain her thinking when she repeatedly made her more controversial remarks as both a Federal District and Appellate Court jurist. The republican senators focused their questions and comments more appropriately on her judicial rulings, including the now infamous Ricci case which has since been reversed by the United States Supreme Court, though Judge Sotomayor relied on existing statutory and case law in sustaining the judgment of the District Court dismissing the case. We can only speculate as the whether or not she might have ruled differently if the plaintiff in "Ricci" were of Hispanic or African-American descent.

My second, and more controversial conclusion, judging by earlier reaction, is that if and when she is confirmed as an Associate Justice of the Supreme Court of the United States, Sonya Sotomayor will be every bit the liberal judicial activist that the republicans fear she will be. Now, I can hear the questions forming just as they did in my Toastmaster's roundtable when I was asked how, when conisdering her judicial record, I could conclude that she would totally change her judicial philosophy if confirmed. This is why I disclosed the fact that I had been privy to inside information from other judges. As a result of this special insight, I am aware of several fears shared by judges in general, but only TWO shared by ALL judges regardless of their jurisdiction or party affiliation.

The first universal fear shared by all the judges I know regardless of the demographic differences, is the fear of the loss of control of their courtrooms. This is a very real, visceral, fear that was illustrated and justified all too well a few years ago in Atlanta, Georgia when an escaping felon took the sidearm of a deputy sheriff and shot and killed several people in the courtroom, including the Judge. After this event, even the most liberal of judges, whose rulings had previously gone against the Second Amendment and groups like the National Rifle Association (NRA), suddenly found gun ownership to be a good thing. Many of them even started carrying their own firearms, in and out of court. There is nothing like seeing a collegue murdered to change a liberal judge's religion when it comes to firearms.

The second universal fear, and more relevant to the conclusion I reached about the Hon. Sonya Sotomayor, is the fear of having a judgment reversed by a higher court on appeal. This is the equivalent of getting your examination back in school with the dreaded red check marks. A reversal says to the judge "you got it WRONG," Reverals can have a detrimental effect on a jurist's career, esp if such reversals are frequent, and involve high profile cases with political implications. While reversals do NOT impune a judge's qualifications, they can lead a politican or layperson to conclude the judge may be less than competent. If a judge's appointment to higher office is a matter of political contention, numerous reversals can be used to justify NOT supporting the judge's nomination, as the reversals of Judge Sotomayor's rulings, including the "Ricci" case, have been used by the republican senators to challenge her qualifications for higher office.

Judges and lawyers alike have a colloquial expression for being reversed on appeal. It is called "being spanked on appeal." Unless these judges and lawyers are closet masochists, that would seem to imply that reversal is, at a minimum, an unpleaseant experience for a judge. It is for this reason, among others, that judges in lower courts tend to make their rulings conservatively to avoid the dreaded "spanking." The higher up in the chain a judge goes, the less fearful he or she is of the "spanking" consequence. Since there is no higher judicial authority in the country than the United States Supreme Court, and even if a justice's opinion is in the minority, it is not considered "wrong" and will be represented in the published opinion. Therefore, when a jurist is appointed to the Supreme Court, he or she is free to exercise his own opinons without fear of reversal or admonition, whereas as a judge in a lower court, the same jurist might tend to be more conservative in her or her rulings. For this reason alone, a judge's record on the bench is not an accurate predictor of how he or she will behave when all judicial constraints are removed and the said jurist is free to "let his or her freak flag fly,"

Ironically, this is EXACTLY what happened in the case of Justice David Souter, the man retiring from the Court creating the vacancy now being filled. Justice Souter was appointed by George H.W. Bush, a conservative republican president, who believed that he was appointing a conservative justice who would interpret the consitution literally. His vetting team concluded that then Judge David Souter was such a jurist based partly upon his judicial record, and in part upon the extensive interviews they had with the prospective nominee. Apparently Justice Souter was able to provide the team with the answers they wanted, because he got the nomination and he got confirmed. Since his confirmation, however, Justice Souter has ruled liberally more than sixty-five percent of the time, and if often referred to as one of the four liberals on the bench. Clearly, he was able to deceive the Bush vetting team, the President himself, and the senate judiciary committee to get the job, and once ensconced, was free to be himself, a liberal judicial activist.

In the Hon. Sonya Sotomayor, I see very many of the same chameleon qualities that we failed to see in then candidate Barak Obama. While her statements and answers in her confirmation hearings were well reasoned, I could tell she had been prepped very carefully and was, in fact, going to her memory to respond to questions that should have been second nature to her. Like the President, she backpedalled away from not only her record, but also a lifetime of political and social views that she had clearly heretofore embraced. This was reminiscent of the way then candidate Barak Obama threw his pastor of twenty years acquaintance, under the proverbial bus when he became a political liability. Suffice it to say, the logical conclusion is that Judge Sotomayor has been prepped by the same deceptive bunch of experts that caused us to elect a President that is NOTHING like the candidate sold to us under very FALSE pretenses. In short, I don't TRUST her and I don't know which Justice will show up to work on that First Monday in October. Will it be the one she's been all her life, the wise latina woman who will make better decisions than a white man, or the more moderate, and constitutionally faithful one she tried to convince us all she was in a week of hearings before the senate judiciary committee. One thing I am comfortable in saying is that the old expression "birds of a feather flock together" seems to be very much applicable to the present situation. I believe that President Obama would not nominate anyone that he didn't think shared his judicial and social philosophy. I believe he is intelligent enough and skilled enough as both a politician and lawyer to recognized someone who is aligned with his model of the world, and who will likely perform in the manner he expects her to. I do not think he is a man who can be easily fooled, but I also believe that his ego is such, that he may actually believe his press clippings and if that is the case, he might not be able to acknowledge the possibility that he is wrong in his assessment. Judge Sotomayor could turn out to be nothing like he thought and therefore be a pleasant surprise to those of us that want a justice who reads and applys the Constitution as written. Only time will tell.

As to how this likely appointment will affect the current makeup of the Supreme Court, there will not be an immediate impact. The current court consists of four justices that are considered liberally biased and frequently rule for the left side of an issue, four justices that are purported to be conservatives and frequently rule on the right side of an issue, and one lone justice that is referred to as the "swing voter" because he cannot be pinned with either a liberal or conservative judicial bias. Whether this is because he is the only justice who is faithfully adhering to his oath and genuinely trying to make his rulings in accordance with the Constitution, or because he is weak, and moderate in his views and can be readily persuaded by either argument. I can't say. I do not know the man well enough to speculate. I only know that at times I am very grateful for his support, and at other times I curse him for his vascillation. Isn't that always the way it goes?

With regard to judicial nominations, this round goes to the democrats. I congratulate President Obama for a very politically well reasoned and diabolical pick in the person of the Hon. Sonya Sotomayor. He found the one candidate who could actually survive the nomination process virtually unscathed, and claim a bi-partisan victory in the process. Whether you agree or disagree with his political and social philosophy, you have to give the man his due in that he is one formidable politician. Whether the credit for this goes to him or his handlers is a matter for specuation. But he did this without the aid of a teleprompter, cliffs notes, or any other crutch traditionally employed by politicians to help them make their points without making Biden-style gaffes. The republicans wisely chose to not waste their ammo against the unassailable Judge Sotomayor, but the equally, or perhaps MORE important issues of Cap n' Trade, and National Health Care Reform are battles still to be fought, and that fight may well end up before the Supreme Court of the United States where then Associate Justice Sonya Sotomayor will be able to answer our burining question "who will she be tomorrow?"

His-PANIC!

When Barak Obama was elected, I PRAYED that his term would pass without any of the nine Supreme Court Justices retiring or passing on.  I only asked for a four year moritorium because I believed then, as I believe even more NOW, that he will be a one-term President.  I also believed that he would, at some time, overreach his authority as President and perform some act that he was not constitutially empowered to do and, in this area, he did NOT disappoint me.  Thanks to his unprecendent seizures of banks and auto companies and, his forcing salary caps and bonus restrictions on private companies, as well as his firing of General Motors' CEO Rick Wagner; and, his strong-arming of a bankruptcy court judge to deprive Chrysler and General Motors' bondholders and shareholders of their rights under federal laws, he has opened himself and his administration up to legal and political drama.

 Clearly, there are numerous grounds for legal challanges against this administration.  In our entire history there has only been one attempt to nationalize a private enterprise and that occurred when Harry Truman attempted to nationalize the steel industry during the Korean war.  Now granted, this was about settling a strike that was hurting our war effort, but notwithstanding this, the courts struck this down as unconstitutional and that case is controlling to date.  A legal challenge against these actions is the only recourse we have to protect our private property rights.  As voters, we can do nothing against this administration before November, 2012. However, the bondholders and shareholders can take the administration to court to seek injunctive relief.  Due to the unprecendented nature of events, any such challenge would likely reach the Court of Appeals, or even the Supreme Court.

Into this muddled morass of facts and circumstances comes the Hon. Sonya Sotomayor, the nominee for the position of Associate Justice of the United States Supreme Court being vacated by the current Justice, the Hon. David Souter.  Justice Souter was appointed to the bench by President George H.W. Bush, and was believed to be a conservative leaning Judge at the time of his appointment.  Contrary to this belief, Justice Souter has ruled with the liberal justices more the sixty-five percent of his time on the bench.  Clearly, replacing him with an equally liberal justice does nothing to change the balance on the court at this time.  Still, every prospective justice should receive proper vetting by the United Sates Senate prior to his or her confirmation, and this is where we find outselves.

Sadly, there is more to this story because the liberal Democrats of the Senate, as well as the White House Press Secretary are playing traditional identity politics with this nomination.  They are doing the typical quota-filling tokenism with this nomination, and they are daring those on the right to "proceed at their peril" when it comes to the vetting process required by law.  They are betting that any challenge to this nominee will cost the Republican party any propect of support from the Hispanic community in upcoming elections.   Where was this concern for THEIR support from the Hispanic community when THEY were ripping into Alberto Gonzales? The simple answer is that is was nowhere to be found.  This is probably because it is all a load of BULL.

What the press may not want you to remember is that the senate democrats demonstrated the very bigotry then now warn the republicans not to display when it came to the nomination of the  Honorable Miguel Estrada, to the Court of Appeals.  Miguel Estrada is a judge with an American story every bit as impressive as Judge Sotomayor's is.  Why then, you may ask, is there not an Appellate Court Judge named Miguel Estrada?  The answer is a bit more complicated.  Liberal democrats have this "token" mentatlity when it comes to minorities.  They like to be the first to put a "first" in a position of authority or responsibility.  That would not have been a bar here as there were already Hispanic judges at the Appellate Court level, namely Judge Sonya Sotomayor.  And what was their excuse for the treatment shown to Alberto Gonzales when he was nominated for Attorney General.  He, too had a very compelling American story, but that didn't seem to matter to the senate democrats, including the self-righteous Senator from New York, Charles Schumer, and the junior Sentaor from New York, Hillary Rodham Clinton.

The actual reason there is no Justice Estrada on the Court of Appeals has nothing to do with his being an Hispanic, and EVERYTHING to do with the fact that he believes the role of a Judge is to take the laws written and enacted by the legistlature (i.e. the Constitution), and apply it, as written, to the fact pattern of the case at bar.  This is the mark of a CONSERVATIVE judge.  Now in contrast to this, the liberal democratis believe that it is the role of the judge to write new legistlation from the bench if the laws on the books do not comply with said judge's political ideology.  This is the mark of a LIBERAL judge, or judicial activist as they are sometimes called.  This is the contrast between what liberal democrats want in a Supreme Court Justice and what conservative republicans want in a Supreme Court Justice.  Clearlly there are maked differences between the two, and it is those differences that need to be fully exposed during the confirmation hearings. 

Barak Obama is a liberal democrat, and notwithstanding the fact that his is himself a constitutional scholar, clearly favors the liberal activist judge model.  He would not have nominated Judge Sotomayor if he did not belive she shares his belief that it is the role of the judge to make law from the bench, a function NOT intended for judges by our founding fathers when they penned the Constitution.   The founding fathers built in a system of checks and balances to keep any one branch of the government from becoming more powerful than any other.  The founding fathers intended for elected legistlators ALONE to write laws, and for the President alone to be able to approve or veto them.  This is because these officials are the only ones accountable to the voting public. 

 The role of the Supreme Court and the federal judiciary is to safeguard the Constiution and ensure that neither legislators nor Presidents would enact laws that were contrary to the tenets of the Constitution.   They did this to ensure that neither political expedience or popular prejudices would upset the balance of power and emperil the rights of American citizens.  The founding fathers intended the rule of law to be sacrosanct and for the government to honor contracts and respect private property rights and individual freedoms of all citizens, except under such circumstances as conviction of a crime or enforcement of a civil judgment.  The conduct of this administration flys in the face of these protections and clearly warrants a judicial review.

In the hearing for Judge Sotomayor, you will not hear a peep from the democratic senators about the role of the judge, judicial activism, or anything else that could be perceived as a negative against this Judge.  Just like President Obama, the liberal democrats in the Senate believe this nominee is EXACTLY what they want, an activist judge who legislates from the bench, and they will do NOTHING to expose this and emperil their nominee.  It is left to the republicans in the senate to actually do their jobs and show the American people what kind of judge this nominee actually is, and to further illustrate to the American public the contrast between what democrats want in judges and what republicans want in judges so that the people can decide for themselves who best represents their interests in these and and other matters.

It is these distinctions between republicans and democrats that have been sorely lacking in the past eight years.  Ive often posed the question: "Are congressional republicans transvestite or transsexuals?"  Now before the gay rights types go nuts on me, it should be clearly understood that the vast majority of transvestites are HETEROSEXUALS, so there is no homophobic intent here.  I merely pose the metaphor because I can't decide if congressional republicans are merely dressing and acting like democrats, e.g. transvestite, or if they've had full gender reassignment surgery to become democrats, e.g. transsexuals.  In the case of Senator Arlen Specter, this is no longer a question.  He's CLEARLY a post-op democrat.  The jury's still out on Senators Susan Collins, and Olympia Snow.  I'm reasonably secure in declaring John McCain a transvestite in this metaphor.

While the republicans clearly must distinguish themselves from their democratic counterparts and actually DO their jobs vetting this candidate, they must also beware and avoid falling into the trap set for them by those very democrats.  To do this, they need to avoid the Rush Limbaugh example of comparing Judge Sotomayor to David Duke.  To be fair, Rush never actually did this, but the facts are irrelevant to the liberal media and he's been widely reported as having done this.  While Rush can defend himself, quite ably, the example is very real.  Republican Senators and political pundits alike must avoid the race issue altogether.  In the first place, it's irrelevant.  Nobody, including Rush Limbaugh and Ann Coulter, thinks that Judge Sonya Sotomayor is anything like David Duke.  The comparison is ludicrous at best and to make it puts the republican party at real risk of coming off to the Hispanic voters as being either racist or xenophobic.   

The way to avoid this trap is simple.  Treat Judge Sotomayor first and foremost as a qualified judge with an inspirational American story and an equally impressive ciriculum vitae, as well as a seventeen year history that reveals how she interprets and applies existing laws to the fact patterns of her various cases.  Use the facts and judgments in these cases to show clearly how she interprets the role of a judge in constitutional questions and bring out facts that support her comment that it is actually the appellate court judge that makes law and sets policy.  Also, bring out the fact that she has been reversed three out of her six times on appeal to higher courts, including the Supreme Court to which she now apires to sit.  Lastly, show her the deference and respect you would show any woman in her position.  Do that and you will not antagonize or alienate the Hispanic community,  Most importantly, you must give people a choice if you wish them to make one so the differences between senate republicans and democrats must be clearly illustrated.

The worst thing republican senators can do is try to play to the media.  This is a losing proposition from the very start.  For a republican, you will be about as successful in appeasing the press as Prime Minister Neville Chamberlain was in trying to appease Adolf Hitler.  It's NOT gonna happen, because neither Hitler, nor the press, come to the table with honest intent.  No matter what republicans do, they're gonna be shredded in the press.  If they go soft on Judge Sotomayor, theyre going to be portrayed as weak and innefectual, a judgment that will be SHARED by their voting constituents.  If they do their jobs and bring out the truth about the judge, they will be portrayed as racist, sexist, and mean spirited for sure, but this is irrelevant because regardless of any spin applied by reporters or pundits, the viewing public will also see the tape of the hearings themselves and no one will doubt the evidence of their own eyes, especially if the press reports to the contrary.  No one trusts the media anymore, so don't worry about that audience.

As for the Hispanic community, if you don't disrespect the judge personally or make any derrogatory statements about her race or anything personal to her as a woman, you won't have a problem there, either.  Trust that our fellow Americans are not blind to liberal hypocrisy, which is about the only thing that is transparent about them.  In this, they are as transparent as Saran Wrap.  Contrary to the liberals world view, Hispanics are a proud and diverse group.  They do not see themselves as "victims" and will not forgive the liberals for their condescension and hypocrisy when it comes to their treatment of minorites.  It is pure hubris on the part of the liberal democrats to think that any minority group "needs" their largesse in this day and age.  No one, least of all Hispanic Americans, wants to dine on government cheese.   We tried that for the three decades between the 1960s and the 1990s.  It was called welfare and it was a liberal democrat named Bill Clinton that ended it.  

In summation, the gauntlet has been thrown down by the evil Sir Charles of Schumer. Republican senators must now do what medievil knights have always done in this situation.  They must pick up the gauntlet, slap the said Sir Charles of Schumer across the face, forcefully (figuratively speaking, of course), draw their swords, and engage the challanger in combat.  Retreat is not an option, because then as now, if you retreat, you will lose your honor, integrity, and in all likelihood, your jobs.  Accordingly, I say this to the senate republicans: "DO your jobs and vet this judicial nominee thoroughly and respectfully if you want to KEEP your jobs in the next elections; and, most of all, do not PANIC,