This morning President Obama announced his pick to fill the Supreme Court seat of retiring Justice David Souter: Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals. While others far more learned in the law will weigh in on this, I find her unacceptable for two reasons:
She is on video stating that the Court of Appeals is a policy-making body:
“…Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law,’ I know. [audience laughter] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [audience laughter]”
See for yourself:
Her clumsy disavowals aside, what Judge Sotomayor is advocating is nothing less than judicial imperialism. It’s rule by the courts in which judges make up the law to fit their sense of justice, rather than apply it based on the letter of the law, the intent of those who wrote it, and its admissibility under the Constitution. And it is anti-democratic to the core: under our system, policy -the laws under which we live- is made by the elected representatives of the People in the legislatures, not by unelected judges who serve for life and who never again have to face audit by the People for their decisions.
What Judge Sotomayor is advocating is an oligarchy of the black robes in which judges not only rule on the law, but create it, answerable only narrower layers of the oligarchy above them. Her opinion is anti-constitutional and would appall the Founders, and should itself disqualify her from the Supreme Court.
But wait, there’s more!
Judge Sotomayor has said race, gender, and ethnicity should play a factor in how a judge decides the law:
In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”
In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” said Judge Sotomayor,….
She must never have noticed that statue of blind Justice around her courtrooms. This is so obvious, I can’t believe I have to make this point, but justice under the law applies equally to all, regardless of race, ethnicity, religion, political belief, or gender. Yes, we’ve often fallen short of that over our history, but it the ideal at which we aim and the standard to which we hold ourselves. There is not one justice for White males and another for Chinese women, and no judge should claim a special knowledge of what is just or of a different justice, just because she was born into one or another group. Our rights under the Constitution are the birthright of each and every citizen, regardless of birth, and the most basic right of all is that the law applies equally to each and every citizen as a citizen, and for no other reason.
If Judge Sotomayor truly believes that ethnicity gives her insight into true justice, then she is not fit for the federal bench at all, not just the Supreme Court.
That said, the hearings begin in July, and I expect she will be confirmed. The Democrats have the votes, and the Republicans probably won’t have the will to sustain a filibuster. There’s a principle that Presidents should have their nominees passed, barring incompetence or corruption. Yeah, I know. The Democrats made a mockery of that principle when Bush was in office, but it’s still there. I’d argue that Judge Sotomayor’s positions outlined above imply an incompetent judicial philosophy, but I doubt that argument would carry the day.
Also, Obama played a trump card by nominating someone who would be the first Hispanic on the Supreme Court, thus pandering to a key group that voted for him in 2008, and among whom the Republicans are very weak. The Senate caucus will probably find it very difficult to oppose her and risk further alienating a group very deep into identity politics. Chicago-style politics at its best.
Still, I firmly believe the reasons I gave above are enough to mount a strong opposition to Judge Sotomayor’s nomination: if it can’t be derailed, then the Republicans can at least fight to expose her disturbing beliefs to the general public and force the Obama Administration and Senate Democrats to defend their support for judicial imperialism and the "principle" of unequal justice for all.
(via Don Surber)
UPDATE: Another reason to oppose Sotomayor’s nomination:
"[W]e who judge must not deny the differences resulting from experience or heritage but attempt… continuously to judge when those opinions, sympathies, and prejudices are appropriate."
Emphasis added. Contrast that with her oath of office.