'76 Blog

(CCU Faculty) In 2008, in the case of District of Columbia v. Heller, the Supreme Court decided that the highly restrictive gun control laws of Washington, D.C. were in violation of the 2nd Amendment of the Constitution.  In so deciding, the Court issued a somewhat narrow opinion stating that the 2nd Amendment was offended by the decision of the federally-administered District of Columbia.  What went unanswered was the extent to which the 2nd Amendment applies to all state and local government ordinances. Immediately following the Heller decision, opponents of two very restrictive laws in Chicago and its neighboring suburb Oak Park, Illinois were challenged. The case, which will be argued on Tuesday before the Supreme Court, will focus on this very straightforward question: does the Second Amendment apply to state and local laws, or just to those passed by Congress or the federal establishment of Washington, D.C.? To many, this may seem like a silly question.  When most people consider the Bill of Rights, which includes our protections concerning speech, press, religion, speedy trials, jury of peers, etc., we have great confidence that each item listed in the Bill of Rights is secure, regardless of whether we are operating under federal, state or local ordinances.  This interpretation was not, for much of our nation’s history, the understanding of our Bill of Rights..  In 1833, the U.S. Supreme Court issued an opinion in the case of Barron v. Baltimore, in which it established a precedent of “dual citizenship.”  Briefly, the case had to do with a local wharf in the Baltimore Harbor where Mr. Barron co-owned land.  The wharf had been open to ships docking and loading/unloading goods.  In the process of constructing roads, the city of Baltimore diverted local streams which led to a buildup of sand and debris, making Mr. Barron’s wharf unusable by many ships.  In response, Barron sued the mayor of Baltimore, arguing that a “taking” of his rights had occurred, in violation of the 5th Amendment protection concerning eminent domain, and that he must be given compensation for this.  In a unanimous opinion, the Supreme Court rejected Mr. Barron’s argument, stating that the Bill of Rights applied to Federal Government actions and not the states: "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Based upon this ruling, states need not guarantee Bill of Rights protections unless their individual state constitutions included such protections.  All of this began to gradually change following the passage of the 14th Amendment to the Constitution, specifically Section 1 which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Following this amendment’s addition to the Constitution, the Supreme Court began the gradual process of “selective incorporation.”  By this, the Court has interpreted the phrases concerning “privileges and immunities” and “due process of law” to require that specific components of the Bill of Rights be protected not just by the Federal government, but also by state and local officials.  Gradually, over the course of more than one hundred years, the Supreme Court accepted individual cases and “selectively incorporated” the protection.  Cases familiar to many include Gitlow v. New York (1925, Free Speech), Near v. Minnesota (1931, Free Press), Mapp v. Ohio (1961, Search and Seizure) and Miranda v. Arizona (1966, Access to Counsel). These have all been cases where the Supreme Court has “incorporated” Bill of Rights protections using the 14th Amendment to require state and local governments to protect these liberties. What to this day has not been incorporated, even with the Heller opinion, is the 2nd Amendment.  In fact, lower court rulings, including some from the 7th Circuit Court of Appeals in which the current Illinois cases originate, have found the opposite: that the 2nd Amendment does not speak to state and local ordinances concerning gun control.  Rather, it applies exclusively to the Federal Government. The Case of McDonald v. Chicago presents the Supreme Court with the opportunity to correct these lower court decisions and to ensure that the 2nd Amendment protection of “keeping” arms should not be infringed by any level of government.

(Denver Post, Feb. 21) Mobilize the militia.  Fire up the Humvee.  Get down the musket off the mantelpiece.  Boulder is preparing to invade Colorado. Yes, a lawyer from up in the progressive paradise says that your right to vote on taxes violates his constitutional entitlement to ever-increasing teacher salaries and NEA indoctrination of our kids.  The invasion is no joke, because Herbert Fenster is a legal heavyweight and his intended enforcer is a robed priesthood answerable to no one.  TABOR could be in trouble. Fenster will ask the courts to strike down the Taxpayer’s Bill of Rights in our state constitution, whereby citizens have the last word on taxes and debt, under his theory that taxation by elected legislators, not you and me, is essential to “a republican form of government” as guaranteed to each state by the U.S. Constitution. Some theory.  Major premise: “The power to tax is the power to destroy,” as John Marshall warned Americans two centuries ago.  Minor premise: Colorado’s people, explicitly sovereign under our 1876 constitution, have limited the taxing power with a 1992 amendment.  Conclusion, according to Fenster:  The General Assembly must be given unlimited power to destroy. Who is to ax TABOR?  Not the ordinary working Coloradans who sweat the jobs that bring the paychecks that yield the taxes that reduce the take-home that feeds the family.  That would call for a ballot issue and a campaign, you see.  It would require persuading too many selfish folks who don’t realize that others know what’s best for them.  Fenster of Boulder would rather just persuade a few enlightened judges. We could try to antidote this poison cocktail of elitism and illogic with facts. We could bring data to show that tax limitation over the past two decades has helped Colorado’s economy to thrive competitively, while buffering public budgets from the nightmare imbalance of states like California.  We could cite studies tracing the dysfunction of public education to structural, not fiscal, causes.  But that’s not the real issue. The issue is whether we’re fit to be free – we the self-assertive and self-reliant Westerners, we the people.  Herb Fenster and his liberal posse, decent Americans as best I know, don’t think so.  They want the unelected judiciary to take our votes away from us because we’re uncaring toward children.  What’s scary is that they may succeed, unless we raise the kind of hell that free men raise when liberty is threatened. I don’t just mean filing legal briefs.  A defense in court will be needed, and TABOR advocates will mount one.  Nor do I just mean winning the debate.  Montana's Robert Natelson and many other law professors could school Fenster in the constitutional acceptability of “direct citizen lawmaking” in both the Founders’ intent and case law.  But along with all that, we need the tea-party spirit.  Absent an aroused and determined citizenry, neither law nor logic nor the majesty of the Supreme Court nor even the powers  of Congress are now enough to safeguard limited government, so far gone is the old American republic with its “Don’t tread on me” ethos.  In the Reynolds case of 1964, the US Supreme Court imperially banned state senates from being districted as the U.S. Senate is.  Constitutionally unwarranted and outrageous, but we swallowed it.  Will the Fenster case tempt the Supremes to a similar tyrannical ban on tax limits? It could – and even if it does not, this should be a wakeup call for patriots. Those seeking to simply gavel TABOR down will try something else if this fails.  They are emboldened and shameless.  They evidently believe Dostoevsky was right when he predicted mankind will trade “the ill-fated gift of freedom” for bread and lies.  They assume that Tocqueville’s prophecy of “soft despotism” gradually making Americans a nation of sheep has come true.  Has it?  

(CCU Faculty) The other day, Vincent Carroll of the Denver Post took Congressman Jared Polis to task for his hypocrisy regarding free speech.  Polis has strongly criticized the recent Supreme Court decision rolling back restrictions on corporate speech accusing the latter of using their resources to “confuse and trick people.”  Carroll pointed out that Polis is fine with using his considerable private wealth to, I assume, “confuse and trick people” since that’s what money is for. Carroll points out the buckets of money Polis has poured out to buy allies and elections—especially his own.  Par for the course—lots of politicians buy their way into office.  But today Polis rebutted Carroll’s accusation.  I guess it was a rebuttal, if by rebuttal we mean using hypocrisy to defend hypocrisy. Polis’ defense was this: corporations aren’t “human beings.”  They aren’t “alive.”  That’s it.  As a result they don’t have the same free speech rights as plutocrats like Polis.  He can spend his money any way he wants because he is a live human being. Is it lost on Polis that labor unions aren’t “human beings?”  What about 527s?  What about political parties?  What about newspapers?  They are afforded exceptions to campaign laws but last time I looked the New York Times was not a human being—just a propaganda arm for the left wing elite.  If Polis is so worried about the role of money in politics he could have started with the last presidential election.  His candidate outspent his opponent by 300 million dollars after pledging to only feed at the public trough.  Or he could have gone after trial lawyers who do more than anyone else to “confuse and trick people.” Jared Polis is proof-in-person of one iron law I have observed over the past thirty years.  I have never met a single Leftist who believed in unrestricted political speech.  Like Jared Polis they all have one standard—free speech for me and not for thee.  Polis’ problem with corporations is not that they are not human beings but they might spend their money to support causes he opposes.  And that’s the rub.  It’s always the rub.  The Leftist vision cannot be implemented if people are allowed to freely choose from equally represented alternatives.  Because the Left will be rejected every time just as their vision of healthcare and economics is being rejected by the American people at this very moment.  Tricking and confusing people is what the Jared Polises of the world are all about.  And they don’t want anyone else to have the opportunity to do it.

Colorado Christian University is committed to developing the next generation of leaders.  One of the Strategic Objectives of the school is "To impact our culture in support of traditional family values, sanctity of life, compassion for the poor, Biblical view of human nature, limited government, personal freedom, free markets, natural law, original intent of the Constitution and Western civilization." As a means of furthering this objective, from January 4-8, eight students participated in a winter session class devoted to learning more about state and local government.  A major portion of the class was dedicated to guest speakers, some of whom came to the Lakewood campus. The class also spent two days at the Colorado State Capitol.  The guest speakers afforded the students a unique opportunity to hear from and question leading state officials.  Listed below are the speakers who addressed the class, as well as the topics discussed. Attorney General John SuthersTopic: Role of the Attorney General, current issues facing the state including the potential suit against the federal healthcare initiative State Representative Glenn VaadTopic: Discussion on theories of representation, discussion on legislation being proposed in the current session concerning privatization of state maximum security prisons State Senator Mike KoppTopic: Legislative procedures.  Mock legislative session:  how senate committees work on bills State Supreme Court Justice Allison EidTopic: Role of the court, court administration, judicial philosophy, rules of Colorado courts: appointment and retention elections State Representative Amy StephensTopic:  Running for office, work of state legislators, role of faith in legislative duties Colorado Appellate Court Judge Dennis GrahamTopic: History of Colorado’s judiciary, discussion of court procedures John Andrews, Centennial Institute Director; former President of the Colorado SenateTopic: running for office, importance of serving, significance of state government, importance of states reasserting their Constitutional authority.  Mark Barrington: Candidate for Colorado State Representative, 26th DistrictTopic: Process of running for state office Matt Arnold: Director of Clear the Bench ColoradoTopic: problem of judicial activism, process of removing state judges through retention elections, Jeff Crank: Director of Americans for Prosperity: Colorado & talk radio hostTopic: becoming active in the political process & the work of Americans for Prosperity    

(CCU Faculty) The United States Supreme Court has agreed to hear the case of Christian Legal Society v. Martinez (UC Hastings).  This case concerns the claim by the Christian Legal Society, a national group of Christian lawyers and law students, that they have been denied their First Amendment guarantees of freedom of association and free exercise of religious faith. The Christian Legal Society had an organized chapter on the University of California’s Hastings College of the Law campus in San Francisco.  In 2004, the group was told by school administrators that they would no longer be recognized as an official campus group, thereby losing their eligibility for school funding and other benefits, including the ability to reserve campus space to hold meetings.  The reason for this decision: the Christian Legal Society required that voting members and club officers sign a statement of faith and agree to a personal conduct code.  This code includes the statement that “Christians should not engage in sexual conduct outside of a marriage between a man and a woman.” The law school argued that all campus groups must not discriminate against people because of their religious faith or sexual orientation.  Groups that exclude individuals from membership are denied official recognition and school funding. In Federal District Court, as well as in the 9th Circuit Court of Appeals, the Christian Legal Society was unsuccessful in their claim that the school’s decision violated their First Amendment rights.  Attorneys for the Christian Legal Society argued that the First Amendment guarantees a right of “expressive association.”  As such, a group must be able to adhere to their core religious views and make governing decisions based upon them.   The denial of this by the lower courts allows for the school’s ban on discrimination to trump a religious group’s right to exercise their faith freely. We must hope that the US Supreme Court will overturn these lower court decisions and recognize the significant right of religious groups to maintain the central tenets and teachings of their faith.

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review. So much for separation of powers, consent of the governed, or checks and balances.  In fact, the Lobato ruling leads to the obvious question:  "What's left to check or balance the court?" The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent. A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions. Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency.  Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview. However, the supreme court's majority selectively quoted and distorted the law and its own precedent.  Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government. Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished." Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power."  Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives? In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained:  "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary." Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts. She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance. Bender asserts that Lujan explicitly established the court's authority to review public school finance.  Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised." Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate."  She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review." In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers." That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration. Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010.  Perhaps then voters will exercise their own "checks and balances." Mark Hillman served as senate majority leader and state treasurer.  To read more or comment, go to www.MarkHillman.com.

(Denver Post, June 21) “It is a small state, and yet there are those who love it.”  Sen. Daniel Webster, arguing the Dartmouth case before the Supreme Court, actually said “college,” not “state.”  But my paraphrase is apropos for Coloradans in a summer when the nomination of Sonia Sotomayor has everyone talking about senators and justices. We do love this smallish state of ours, and jealousy for Colorado’s prerogatives of self-government is in order as we debate replacing David Souter.  “Don’t tread on me,” the defiant flag of the founding era, has made a comeback at this year’s Tea Parties. Does Sotomayor get that?  Not that I can tell, which means she’s wrong for the court. Of the three federal branches, claimed Alexander Hamilton in the Federalist, “the judiciary will always be the least dangerous to the Constitution,” as it has neither “the sword or the purse.”  Decades of judicial imperialism have left that prediction as devalued as Hamilton’s $10 bill. More accurate was his rival Robert Yates, who wrote in the Anti-Federalist that history had never seen “a court of justice invested with such immense powers, and yet placed in a situation so little responsible.” He worried that the Supreme Court would “be able to extend the limits of the general government gradually” and at last “to melt down the states into one entire government for every purpose.” Did Yates exaggerate?  Not much. From FDR’s time to Obama’s, regardless of which party appointed them, the robed priesthood of the bench has overseen more and more of American governance gravitating from state capitals to Washington and from the elected branches to themselves. Is there blame to go around?  Yes; every part of our body politic has helped weaken liberty.  We’re now getting the government we deserve.  Does history hinge on Sotomayor’s confirmation or defeat?  No; “wise Latina woman” or not, she’s just one judge.  We the people must initiate the needed constitutional rebirth. It’s dismaying, though, how oblivious most politicians are to the high court’s part in turning free citizens into docile “sheeple” (Pravda’s mocking word).  Seeking some comprehension of the crisis, I asked Colorado’s senators, Michael Bennet and Mark Udall, what our smaller state with its commitment to participative self-government should constitutionally expect from the Supreme Court. The answers came back bland as sand. “Coloradans want judges who are fair, impartial, and faithfully apply the law,” said Bennet, adding that he hopes for a sensitivity to “our special concerns in the West” about water rights, public lands, and the role of government.  Udall told me the qualities he’s looking for include “moderation, an ability to listen and bridge ideological divides, and above all, a deep understanding of the constitution.”  Unlike Bennet, who came out for Sotomayor after a brief meeting, Udall is uncommitted though leaning favorably. The danger of senators rubber-stamping a president’s judicial nominees, predicted by Oliver Ellsworth at the 1787 convention, seems borne out by these two in relation to fellow Democrat Barack Obama.  They need remediation from CU law professor Robert Nagel, author of “Unrestrained: Judicial Excess and the Mind of the American Lawyer.”  Nagel says legal groupthink has made the whole country politically timid and “slavish in believing we need to be saved by the Supreme Court” from the messiness of democracy. Former Colorado Supreme Court Justice Jean Dubofsky, another Democrat and the first woman on that bench, supports Sotomayor but said she too wishes for a high court with more “out in the world experience” and fewer Ivy-trained Easterners with appellate resumes like this nominee. Very true, and by that yardstick I’d prefer Dubofsky herself, or Bennet or Udall, or Bill Ritter or Pat Schroeder, to Judge Sonia. Liberals all – but any of them would be less susceptible to the seductive superstition of Supremes as Saviors.        

In the fall of 2004, Wesley Busch was a kindergarten student at the Marple Newtown School District in Marple, Pennsylvania.  Each week, one of the students in his class would be the featured student in a classroom unit entitled “All About Me.”  During their assigned week, students were asked to design a poster (favorite things to do, favorite things to eat, places to go, etc.) and on the final day of the week, one of the child’s parents was asked to come to class and bring something of importance to share.  Often this would include bringing a favorite book to read for the class. Wesley Busch and his mother Donna Kay Busch decided that what Wesley would like to share would be from his favorite book, the Bible.  So on the assigned day, Mrs. Busch showed up at the school, prepared to read 5 verses from the Book of Psalms.  Before reading, she informed Wesley’s teacher of what she was planning and the teacher immediately notified the school Principal who informed Mrs. Busch that he would not allow her to read the verses, as it would be breaking the law concerning the separation of church and state and thus violate the Establishment Clause of the United States Constitution. Mrs. Busch filed suit against the school district, claiming violations of Wesley’s rights under both the U.S. and Pennsylvania Constitutions, including claims of denying her son’s rights of free speech and expression and free exercise of religious faith.  The Busch’s lost in Federal District Court and on June 1, 2009 the lower court’s ruling was upheld by the 3rd  Circuit Court of Appeals based in Philadelphia. The opinion of the 3rd Circuit Court largely relies upon the belief that had Mrs. Busch been able to read the verses from Psalms, she would in effect by “proselytizing” in the school room, thus violating the Establishment Clause, as public schools are government entities and they should not endorse faith.  Referring to the Lemon Test (developed by the Supreme Court in Lemon v. Kurtzman), a three-pronged checklist is used to determine whether or not a law violates the Establishment Clause.  For this case, the pertinent test concerns the second prong: “The principal or primary effect must neither advance nor inhibit religion.”  This test, as interpreted by the courts since the original decision in 1971, requires state neutrality towards religious faith. When we consider the “All About Me” assignment and look specifically at the question of a student bringing in a favorite book for reading, should the school be permitted to censor what is permissible?  When the school does allow Green Eggs and Ham to be read but does not allow 5 verses from Psalms, is it being neutral towards religion or is it discriminating against faith?  An important distinction must be realized: having a student or parent read from a favorite book is not the same as if a teacher or other school employee were to do so.  There is a significant difference between individuals expressing their faith in the school room as opposed to teachers in a public school setting.  We are, of course, left to wonder, what would have happened were the student to have brought in Heather Has Two Mommies or Daddy’s Roommate? Would these books have been permitted in spite of their clear agenda and attempt at persuasion?  More often than not, the courts in recent years have allowed “proselytizing” when it promotes anything but religion.  This, of course, is not neutral but in fact discrimination against religion. The verses that Mrs. Busch intended to read were Psalm 118: 1-4 & 141 Give thanks unto the Lord, for he is good; because his mercy endures forever.2 Let Israel now say, his mercy endures forever.3 Let the house of Aaron now say, that his mercy endures forever.4 Let them now that fear the Lord say, that his mercy endures forever. 14 The Lord is my strength and my song, and He has become my salvation.  

Barack Obama's selection of Sonia Sotomayor for the Supreme Court is par for the course with this president, a man who ascended the presidency on the basis of a compelling personal story and a bag full of bromides about post-partisan hope and change. Those who bought the Obama schtick may not have known it then, but they elected a hyper-partisan pol with big dreams of remaking America into a social justice utopia where the ends always justify the means.  Rules -- and indeed the rule of law -- mean little in this world where grievance politics dominate, and the playing field shifts regularly to protect those suffering all manner of "discrimination" at the hands of the (white) power structure. Its typical class warfare, only this time it is practiced with extreme efficiency and on the backs of a huge Congressional left-wing majority. For those who believe that America is a meritocracy and should be truly "color-blind", the country is now being run by those who see everything through race-colored glasses.The nomination of Sotomayor is a perfect example of this. Obama picked her not because she has the finest legal mind in the country (she does not), but because of she is an Hispanic woman who has a personal history that is appealing. She grew up poor in the Bronx and worked hard, and made something of herself. She also satisfies two check boxes on the identity politics checklist -- being a woman and a minority -- which brings Obama praise from NOW and other interest groups.Ironically, Sotomayor's story is little different than that of conservative Justice Clarence Thomas -- a point eloquently made by Kim Strassel in today's Wall Street Journal. But whereas Thomas' personal struggles led him to embrace the lesson that if "I can do it, so can others" -- Sotomayor fell firmly into victimization's clutches, where she joins a legion of other minorities in the belief that the system is arrayed against them. The irony, of course, is that the evidence of their own success from hard-scrabble beginnings has done nothing to dissuade them from their hardened belief that somehow "the man" is out to get them. This is yet another example of how facts have little bearing on the "feeling" politics practiced by the left.Sotomayor has made it clear that her view of the world -- and the law -- is based principally on her gender and background. It is something that she feels makes her better positioned to "come to a wise decision" than is a white man who hasn't been subjected to the devastating discrimination that people like Sotomayor see lurking behind every tree. If you view America as a mean place where Hispanics, women and other minorities need protection, then I suppose this is a reasonable position to take. But is this what a Justice of the United States Supreme Court should believe? Someone appointed to intepret the Constitution for all Americans -- white, black or other? A process that, by definition, must be impartial and based on legal fact and analysis?As it happens, a famous case of Sotomayor's from her tenure on the Second Circuit Court of Appeals is now being reviewed by the current Supreme Court -- as the WSJ outlines today in the case of the New Haven Fire Department. With a single paragraph, Judge Sonia Sotomayor and two colleagues dashed the hopes of firefighters here who believed they'd scored high enough on exams to win a promotion. The three federal appeals judges said last year the city had the right to reject the results of two tests because no black firefighters scored high enough. The ruling is now turning into perhaps the most contentious of the 4,000 Judge Sotomayor made in 17 years on the federal bench, and it is likely to come up in her Supreme Court confirmation hearings. The justices whom she may soon join on the high court are expected to rule within weeks on the case, which they took on an appeal by white firefighters. The facts of the case are as follows: A total of 118 applicants took the two tests for promotion to lieutenant or captain in late 2003, and 59 earned passing scores. Because there were limited vacancies, only the top scorers were eligible for promotion -- a group of 17 whites, and two Hispanics. None of the 27 black firefighters with passing scores was eligible. New Haven city lawyers advised the city's Civil Service Board to reject the results, warning the city could be exposed to a race-discrimination lawsuit by minority firefighters if it let the exam stand. The board heard conflicting views on whether the test could have been re-engineered to have a less disparate impact. It split 2-2, which meant the exam wasn't certified. This is classic liberal social engineering at work: you give a merit based test to determine promotions and tell firefighters to study hard for it. They take the test and when the results come back in a way that you don't like, you throw the results out and say "nevermind". If no blacks and only two Hispanics scored high enough, it must be because of some discrimination at work. Let's not reward those who passed -- let's reengineer the test so more blacks and Hispanics will pass. Sotomayor was at the heart of this decision -- stating that it was in the "state's interest" to throw out the results so that the outcome was more to her liking. And what about the white firefighters who have now been discriminated against? To Sotomayor, it doesn't matter, because she lives in a world where color matters more than principle. This is a woman who values outcomes over equality -- even if it results in a decision that is reverse discrimination. We can take some solace that her decision in New Haven is almost certainly going to be reversed by the current Supreme Court. But it leaves little comfort that we are now poised to put this very same judge on the highest court in the land for a generation to come.

President Obama says he seeks "empathy" in a Supreme Court justice.  His first nominee, Judge Sonia Sotomayor, says a "wise Latina woman" would generally make better decisions because of "the richness of her experiences" than a white man. Those views reveal the extent to which political and personal agendas have supplanted the rule of law in selecting nominees. If "rule of law" sounds cold and callous, remember that the alternative isn't "rule of empathy" but "rule of men" ‹ the hierarchy most prevalent throughout human history. Rule of law requires that laws be written, accessible, understandable and uniformly applied. Hence, Lady Justice is depicted as blindfolded, unable tosee the identity of those before her, and holding scales on which she weighs the merits of the opposing sides. Where rule of man predominates, the law means whatever king or dictator or court wants it to mean on a given day.  Historically, this form of corruption favored those with money or power, even when their case was unjust.  Those who undermine the law today do so to reward political constituencies, like racial, gender or other interest groups. "(Chief Justice John) Roberts said he saw himself just as an umpire," Obama said in 2007. "But the issues that come before the court are not sport. "We need somebody who's got the heart ‹ the empathy to recognize what it's like to be a young, teenage mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old." Surely this President to whom profound intellect is routinely attributed understands that the view of a judge as umpire has nothing to do with sports (although he seems strangely enamored of Sotomayor's ruling in a baseball labor dispute). In comparing the role of a judge to that of an umpire, Justice Roberts understood that, just as an umpire's job isn't to determine the outcome by bending the rules, a judge's duty isn't to pick winners and losers by selectively applying the law to some but not to others. Legendary Justice Oliver Wendell Holmes understood this, too, and famously explained that his primary responsibility as a judge was "to see that the game is played according to the rules, whether I like them or not." While Obama purports to seek judges who will empathize with the downtrodden, he seems unwilling to consider that sometimes the downtrodden break the law.What then?  Similarly, a corporation or business owner with deep pockets should be afforded the same legal protections as a bartender or schoolteacher. Though American justice has its flaws, the standard inscribed on the Supreme Court building - "Equal Justice Under Law" - was once our common goal. Obama, however, wants the courts to selectively tip the scales:  "I view that quality of empathy as an essential ingredient for arriving at just decisions and outcomes." In the very next sentence, he seamlessly performs a remarkable contradiction, claiming he will "seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process." When it comes to Jedi mind tricks, Yoda has nothing on Obama. Sotomayor doesn't even pretend that impartiality is a worthy goal.  Citing "basic differences in logic and reasoning," she argues that "our experiences as women and people of color" make "the aspiration to impartiality is just that - it's an aspiration[.]" If a jurist nominated by a Republican president suggested that women and minorities are incapable of impartiality, that nominee would be excoriated - and properly so. Clarence Thomas, Janice Rogers Brown and Miguel Estrada, among others, demonstrate that judges of all backgrounds can choose to apply the law impartially, while others choose to favor particular groups and distort the law accordingly. President Obama understands that his nominee has little interest in presiding like an umpire or in impartially applying the law.  He also understands that this undermines the rule of law.  He just doesn't want you to understand. Mark Hillman served as senate majority leader and state treasurer.  He is now Republican National Committeeman for Colorado, and a Centennial Instsitute Fellow.  To read more or comment, go to www.MarkHillman.com