Wednesday, July 22, 2009

Sotomayor "Doesn't Know" About Self Defense

Sonia Sotomayor had an interesting case of amnesia that should have been flagged by her skeptical opponents. When asked about the constitutional right to self defense, her repeated reply was "I don't know."

Senator Tom Coburn, (R) Senator from Oklahoma, zeroed in on this critical question in constitutional law. According to and to film and transcripts, Sotomayor had a very interesting reply.

“I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can’t think of one. I could be wrong, but I can’t think of one.” She then went on to explain that self-defense rights are usually defined by state law.”

It is interesting to note that local statutes, such as a gun control law in Washington DC have been ruled upon by the US Supreme Court. This would seem to indicate that there is a strong role for the federal government. compiled a list of Supreme Court rulings on self defense with which Sonia Sotomayor should as a federal judge be familiar. They are as follows. Those who want to check's list can do so in the Heller Case book on

Ms. Sotomayor is a federal judge. If she is unfamiliar with the abundance of Supreme Court rulings on self defense, then it casts a major shadow of a doubt on her judicial qualifications. Is she feigning amnesia? That would raise questions of what her hidden agenda might be. She could have said that future cases might raise new issues not covered in previous decisions. She did not state that. Her stammering ignorance of the Supreme Court's record on self defense leads me to wonder what other areas of the constitution might lie submerged in her sea of jurisprudential amnesia. provided the following list of decisions with which Sonia Sotomayor should have been familiar.


KEY: Name Date Citation Page

Acers v. United States 1896 164 U.S. 388 238
Is fear of a deadly attack, without reasonable demonstrated grounds for the fear, sufficient to support a claim of self defense [NO]; Must the danger be immediate [YES]; Can any object be considered as a deadly weapon depending on how it was used [YES].

Alberty v. United States 1896 162 U.S. 499 231
If a husband sees another man trying to get into his wife’s room window at night is it natural for him to investigate further [YES]; Is the husband under a duty to retreat when attacked with a knife under such circumstances [NO]; May the husband use only as much force as is necessary to repel the assault [YES]; If in an ensuing confrontation the husband shoots and kills the other man, then flees, must his flight in and of itself be seen as evidence of his guilt [NO].

Allen v. United States 1896 164 U.S. 492 241
Are words alone sufficient provocation to justify an assault [NO]; Are words alone sufficient to reduce murder to manslaughter [NO]; Can premeditation and intent to kill be determined from your actions [YES]; Although flight after a possibly criminal event may suggest guilt, does it prove it conclusively [NO].

Allison v. United States 1895 160 U.S. 203 216
Is it reasonable to believe that you’re in immediate deadly danger if a person, known to be abusive, known to carry a pistol, and who has made public threats against your life, makes a motion as if to draw down on you, even if it turns out he wasn’t armed at the time [YES]; If there is no corroborating evidence besides your testimony, may the jury decide to take your word for it and acquit based on your credibility [YES]; If you have your deer rifle with you while visiting a friend’s house and your adversary shows up, and in an ensuing confrontation you shoot him, can the judge instruct the jury that you’re guilty of murder if you armed yourself to go hunt down your adversary, when there is no evidence to support this claim [NO].

Andersen v. United States 1898 170 U.S. 481 255
If an indictment is brought charging that a defendant shot and then threw a victim’s body into the sea, so the exact cause of death cannot be known, is the indictment flawed and invalid [NO]; Do the elements of self defense have to be present for an accused person to successfully claim self defense [YES].

Beard v. United States 1895 158 U.S. 550 208
Can you stand your ground with a shotgun against an unprovoked armed attack on your property near your home [YES]; Is there a greater duty to retreat on your own property than in your house [NO].

Brown v. United States 1921 256 U.S. 335 285
Is there a duty to retreat when attacked by a man with a knife [NO]; Believing you’re in a mortal conflict, if you fire a shot in the heat of combat, which in cool reflection later may be seen as unnecessary, may you still be acquitted on grounds of self defense [YES]; Is your right of self defense roughly similar in your home, on your land, and at your work [YES]; Can detached reflection be demanded in the presence of an uplifted knife [NO].

Gourko v. United States 1894 153 U.S. 183 189
If you shoot someone who has repeatedly threatened you, and the circumstances of the shooting are not found to be justifiable as self defense, does the fact that you armed yourself in response to the threat automatically make the shooting murder (as opposed to manslaughter) [NO].

Logan v. United States 1892 144 U.S. 263 180
Does the 2nd Amendment guarantee a preexisting right recognized by the Constitution, and not a right created by the Constitution [YES]; Is a prisoner in legal custody entitled to protection “while he is deprived of the ordinary means of defending and protecting himself” [YES].

Rowe v. United States 1896 164 U.S. 546 247
If a man is provoked into making a minor assault on someone, and then backs off in good faith, is his right to self defense restored if the person he assaulted attacks him with a deadly weapon? [YES]; Is he required to retreat under such circumstances [NO]; Is he under an obligation to try to only wound an attacker when fighting for his life [NO]; Can either party in a mutual combat claim self defense [NO].

Starr v. United States 1894 153 U.S. 614 196
If a law officer legally serving a warrant shoots at a suspect without identifying himself, is the suspect justified in shooting back and killing the officer in self defense [YES].

Tennessee v. Garner 1985 471 U.S. 1 428
Is the use of deadly force by police to prevent the escape of all felony suspects constitutionally unreasonable [YES]; Is the use of deadly force by a police officer permissible under the 4th Amendment, if necessary to prevent the escape of a felony suspect who threatens the officer with a weapon, or if there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, if, where feasible, some warning has been given [YES].

Thompson v. United States 1894 155 U.S. 271 203
Does arming yourself after being threatened, and then traveling the only road in the area where you know your adversary may be, turn a subsequent shooting of the adversary during a confrontation into murder? [NO]; Is arming yourself for legitimate self defense premeditation [NO].

Wallace v. United States 1896 162 U.S. 466 224
Is it up to the jury to decide whether a homicide is murder, manslaughter or justifiable [YES]; Does a perfect right of self defense require blamelessness in the confrontation and an act of necessity only [YES]; Can you claim self defense if you had intentionally brought about a lethal conflict [NO]; Is it up to the jury to decide whether you armed yourself defensively or otherwise [YES]; Is it murder if you enter a quarrel without felonious or malicious intent, and then, under reasonable belief of imminent mortal danger, you kill the assailant [NO]; Does the fact that you deliberately go and arm yourself, for self defense or other innocent purpose, turn a subsequent shooting necessarily from manslaughter to murder [NO]."

Let's be honest. Our timid and self apologetic Republican Party seems to be writing off the idea of opposing Sotomayor. This does not make it a duty for others to surrender. Her ignorance of a critical and strategic area of constitutional law is indeed an issue of qualifications. It raises the additional issue of what other blind spots may dot Sotomayor's legal vistas.

Sotomayor claims to have derived valuable perspectives from her tough life growing up in the Bronx. Don't tell that to Jeffrey Deskovic, who spent six extra years of the sixteen years total he spent in jail because Sonia Sotomayor tossed his appeals on a technicality.

What was the technicality that so captivated Ms. Sotomayor's fine judicial mind? The New York Times reports as follows.

The court denied the request because the paperwork had arrived four days late. Mr. Deskovic and one of his lawyers — who he said had been misinformed about the deadline for filing — appealed the decision to the federal appellate court on which Ms. Sotomayor sat. Ms. Sotomayor, along with the other judge on the panel, ruled that the lawyer’s mistake did not “rise to the level of an extraordinary circumstance” that would compel them to forgive the delay. There was no need to look at the evidence that Mr. Deskovic insisted would affirm his innocence, they said.

"No need to look at the evidence ." Canyou imagine how those words must have haunted Jeffrey Deskovic as he languished in prison? I do not understand what in Ms. Sotomayor's tough life in the Bronx did to sensitise her to the rights of the accused. Deskovic's papers arrived at court four days late because his lawyers screwed up. And Sotomayor simply didn't care.

The classic liberal exhibit in any argument about criminal law often involves the rights of the wrongly convicted. It is a question that haunts me and stops me in my tracks. Sotomayor came face to face with an innocent man and turned away in complete indifference. It is the one time that her alleged liberalism could have made a difference and she walked away. The Deskovic decision is beneath contempt.

If you want a judge who sees "No need to look at the evidence" and displays encyclopedic ignorance of second amendment legal precedents, then you could not do much better than to pick Sonia Sotomayor to sit on the Supreme Court. If on the other hand you care about the terror of a someone who hears glass breaking in the dead of night or a wrongfully imprisoned man whose light of hope has died on a judge's desk, then Sonia Sotomayor should frighten you.

There are those who argue that Sonia Sotomayor has all the right credentials. The same could have just as well been said of Robert Bork, a conservative judge who had an impressive resume when he was grilled in the Senate and ultimately rejected in 1987.

Sonia Mayor may have all the right credentials. But the argument that this entitles her to a seat on the Supreme Court died back in 1987 when Bork became a verb* in the English language. The Democrats may have a majority in the Senate. But common decency has a seat in the heart of every decent human being. It is time for its voice to be heard in the US Senate, and for Sonia Sotomayor's nomination to be rejected by the full Senate. Until the day of that final vote, every American should raise their voice on this critical issue.


–verb (used with object)
to attack (a candidate or public figure) systematically, esp. in the media.

1988, Americanism; after Judge Robert H. Bork, whose appointment to the Supreme Court was blocked in 1987 after an extensive media campaign by his opponents.

Main Entry: Bork
Part of Speech: v
Definition: to seek to obstruct a political appointment or selection; also, to attack a political opponent viciously
Etymology: from the incident involving Robert Bork, US Supreme Court nominee in 1987
Usage: politics

No comments: