President Obama shocked the nation today, when he announced the nomination of U.S. Court of Appeals judge, Sonia Sotomayor, to replace retiring Justice David Souter. What? True, Sotomayor was everyone’s guess from the moment Souter announced his retirement. Any other choice would have likely resulted in disappointed outrage from the left. But oddly, Judge Sotomayor is being hailed as moderate and not a liberal left thinker. Is this odd, or is it part of a sales pitch?
Which is it? Empathy or Constitutional Principles?
In my informal news survey on May 1st, Sotomayor was the number 1 recommendation from the press. Obama’s directions seem clear, nominate a Hispanic woman with liberal credentials. The President initially announced he was looking for someone less concerned about the constitution and more concerned about “the daily realities of people’s lives.” I read that to mean an activist judge.
However, in the weeks following this statement the President seemingly retreated from that sentiment. Today, the President said his second requirement for a Supreme Court Justice “is a recognition of the limits of the judicial role… that a judge’s job is to interpret, not make law.” This is clearly the very definition of a conservative judge – a judge that believes in Constitutional constructionism. Liberal activist justices, like Souter, rely on personal experience and their own sense of right and wrong in deciding cases.
Today news media and left-wing bloggers are concentrating on Sotomayor’s personal experience. Why? Because they are banking on her experiences as a poor Puerto Rican raised in the Bronx to make her a caring liberal justice. The Huffington Post notes her support from some on the right but reassures left-wing liberals that a Justice Sotomayor will fight for gay and abortion rights agendas.
On Judicial Activism
The President told us he chose Sotomayor because he believed she had an “understanding that a judge’s job is to interpret, not make law.” However, Sotomayor told Duke University law students in 2005, that the “Court of Appeals is where policy is made.” Then laughingly she added, “we don’t ‘make law,’ I know.” I am lead to conclude the addendum was said with a wink and a nod. However, she is intelligent as well as well-spoken, so I am left wondering where she actually stands on judicial activism.
Assuming she was merely noting the fact of judicial activism, Hofstra law professor, Eric Freedman pointed out, “It is not a controversial proposition at all that the overwhelming quantity of law making work in the federal system is done by the court of appeals… It is thoroughly uncontroversial to anyone other than a determined demagogue.” I would like to counter by wondering aloud, if so, it should hold that anything that is commonly practiced – regardless of its moral correctness – should be uncontroversial and accepted as normal. Thus, if torture is a common intelligence gathering practice, it should not be a controversial topic. Those who engage in it should be accepted as normal within the accepted norms of their subculture. However, to be fair to Mr. Freedman, he is simply contending that she is only noting the practice – but I am questioning her because she was polictically careful to neither support or condemn the practice.
Judicial Activists believe in creating law through creative reinterpretation of the Constitution. In some cases even citing foriegn laws that support their personal convictions rather than sticking to U.S. legal precedence and sound interpretation of the U.S. Constitution. The last thing we need on the Supreme Court is another Ruth Bader Ginsburg.
Just words, just speeches.
Are we to take seriously the President’s assertion that he was looking for someone with an “understanding that a judge’s job is to interpret, not make law.” Since January it has become apparent to me that President Obama says most of the “right” things and a few times he has even succeeded in tempting me to think, “Geez, maybe he gets it.” In fact, he is saying what needs to be said to convince the center-right majority to follow and not obstruct his agenda. He then proceeds to act on his true motivations, which at times appear to contradict what he has publicly stated.
The assumption that Judge Sotomayor will be easily confirmed concerns me. It concerns me because little to no questions will be raised. I am little comforted that speaking before Congress during her 1997 confirmation to the Court of Appeals, she stated, “I don’t believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.” She was seeking confirmation and needed Republican support.
I am not assuaged by assurances she is moderate. (A blogger I respect predicted the White House and press would promote the nominee as “moderate.”) Such claims have as much credibility as President G.W. Bush assuring me that Iraq’s WMDs would be found. If Judge Sotomayor is truly moderate I would expect strong opposition from more liberal Senators. After all, this is their first chance in more than 30 years to seat an extreme liberal justice, it could well be their last chance for another 30 years. I am just cynical enough to reject the notion that President Obama would throw this chance away. If, in fact, history demonstrates that Obama really is a strict Constitutional constructionist, I will be stunned.
I’ve read over some of the judge’s decisions and I can see some of the “moderate” argument. But I’m not buying it. Her stand on the second amendment is particularly troubling, since it betrays her belief that the Constitution does not necessarily apply to state law. That’s right, she stated that the Second Amendment does not apply to the states. If the Second Amendment doesn’t then what other part of the Constitution is exempt as well?
Opposition will come only from bigots
The National Journal has stated that GOP senators are unlikely to oppose Sotomayor for three reasons. I would suggest these are the same reasons the President nominated Judge Sonia Sotomayor.
- “She is the first Hispanic selected for the SCOTUS.” Sotomayor demographics voted Democratic last election but have complaints about Obama.
- “She is a woman.” Opposition might piss off a badly needed voting block. (Women are not a voting block – but the left is constantly trying to train them to stay on the reservation. Yeah, like you can train cats to run in a herd.)
- “She has an up-from-the-bootstraps story.” She is the American dream, can anyone stand in the way of that and truly be an American?
Finally, there are two more things that raise serious concerns. First, President George H.W. Bush appointed Judge Sotomayor to the District Court for the Southern District of New York. Didn’t this same President also appoint Justice David Souter to the U.S. Supreme Court? Second, this quote from White House Talking Points, “Known as a moderate on the court, Sotomayor often forges consensus and agreeing with her more conservative nominees far more frequently than she disagrees with them. In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time.” Souter was also a Republican appointee – did that make him conservative? I’m not making a judgment as much as I am asking questions.