President Obama recently nominated Judge Sonia Sotomayor to fill the Supreme Court seat of Justice David Souter. Barring some shocking revelation, such as unpaid taxes or links to water boarding, Judge Sotomayor will almost undoubtedly be confirmed by the Democratic majority in the senate.
Much as been made of several comments that Judge Sotomayor has made over the years. In one case, she said, “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.”
While even her supporters agree that this was a dumb thing to say and seems to be a racist comment, it is not the most serious strike against her. One racist comment does not a racist make. It may, however, indicate a prejudice against white males.
It is striking however, to note the lack of outrage by the media. The reaction would undoubtedly be very different if a white man made the remark and reversed the roles. In contrast, much of the media coverage has concentrated on Sotomayor’s Hispanic heritage and her life experiences.
More disturbing is a remark that Sotomayor made in 2005 in which she said that the “court of appeals is where policy is made.” As most of us learned in our civics and government classes in high school, the job of the courts is to interpret the law, not to make policy. Sotomayor’s job should be to interpret the law and to ensure that it meets the constitutional test.
In all, Judge Sotomayor is an unsurprising pick for President Obama, who promised to pick a nominee that “understands that justice isn't about some abstract legal theory or footnote in a casebook. It's also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation." In other words, President Obama doesn’t want an impartial justice; he wants to a justice who will sympathize with certain groups.
The problem with the empathy test is that justice in the United States is supposed to be blind. Judges are not supposed to sympathize with either party. A judge’s decision in a legal case should not depend on which party has the bigger sob story. It should depend on the law as it is written.
As one conservative columnist noted, whenever an average American reports for jury duty, they are told by the judge that they must be objective and not allow preconceptions to affect their ability to decide the case. Why, then, is a judge encouraged to show sympathy and disregard the letter of the law? President Obama’s call for empathy flies in the face of objectivity and Judge Sotomayor’s belief that her life experience as a “wise Latina” makes her a better judge than a white male.
When judges interpret the law based on their own prejudices and beliefs instead of the law as it is written, we get results that are diametrically opposed to what the legislators that passed the laws intended. One example is the Jim Crow laws and Black Codes. The fifteenth amendment to the constitution granted equal rights to former slaves, yet the courts held that blacks could be equal, but also kept separate.
Judge Sotomayor’s prejudice can be seen in a 2008 case, Ricci v. DeStafano, in which 19 white firefighters, including one Hispanic, sued the city of New Haven, Connecticut. The firefighters had taken an officer’s promotion exam. After minority firefighters scored disproportionately lower on the exam, the city threw out the test.
Sotomayor was part of a three-judge panel that upheld a lower court’s ruling against the firefighters. The ruling was unsigned. Four months later, the unsigned ruling was replaced with an unsigned opinion, still affirming the lower court’s decision. A colleague of Sotomayor’s on the Appeals Court wrote that the panel “failed to grapple with the questions of exceptional importance raised in this appeal." Currently, the Supreme Court is deliberating on the case and many observers expect that Sotomayor’s ruling will be overturned.
This case should concern anyone who believes in true equality under the law. If the Supreme Court upholds reverse discrimination then none of us are truly equal. Reverse discrimination is just as wrong as the Jim Crow laws of the past. It also provides an example of how a judge’s sympathy for one party in a case can lead to a miscarriage of justice.
The second amendment to the constitution reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In spite of the fact that the amendment explicitly says “the right of the people,” many activist judges have held that the right to bear arms applies only to state militias and not individual citizens.
In the case of Judge Sotomayor, she has already endorsed an opinion denying the individual right to bear arms. In the case of Maloney v. Cuomo, Sotomayor agreed with the opinion of the US Court of Appeals that the second amendment did not protect citizens from infringement by state governments.
In 2008, in Heller v. District of Columbia, the Supreme Court ruled that the second amendment did indeed guarantee an individual right to keep and bear arms. The most disturbing aspect of this decision is that it was a 5-4 ruling. In spite of the plain language of the amendment, 44% of the justices, all of who are sworn to uphold the Constitution, decided that the “right of the people” does not literally mean people like you and me.
An additional example of judicial overreaching is the commerce clause. The constitution grants Congress the power to regulate commerce between the states and with foreign countries. New Deal era decisions by the Supreme Court interpreted the phrase “interstate commerce,” literally commerce between states, to mean commerce within a single state in many cases.
As activist judges have read their own desires into the law, there has been an erosion of American freedom. In Kelo v. New London, the Court ruled that individual property rights only go as far as the government’s desire to collect a greater property tax payment. Rulings by activist judges have limited the freedom of religion and outlawed traditional prayers and religious displays on government property. In Roe v. Wade, the Court ruled that abortion could not be prohibited after a right to privacy was discovered in the constitution in spite of the fact that the constitution does not mention privacy. Most state laws permitting gay marriage are also the result of activist judges acting on their own prejudices.
Over the past several decades, leftists have used the court system to win policy victories that were impossible for them to win at the ballot box. Judges, most of whom are appointed rather than elected, are not accountable to the people for their decisions as other public officials are. There are many cases of judges acting contrary to, not only the will of the people, but also the Constitution. Because they are not elected, there is very little recourse against their decisions. This is the tyranny of the minority.
By all accounts, Judge Sotomayor is a nice person, but unless she can fully answer disturbing questions about her record and her judicial philosophy, she does not deserve to be a Supreme Court Justice. Most likely, however, she will be confirmed and take a lifetime seat on our highest court. As a result, law-abiding citizens will be less certain of receiving the full legal rights to which they are entitled under the Constitution.