Freedom of BLEEP

Obama has announced his pick for the Supreme Court after “deep reflection and careful deliberation.” Sonia Sotomayer is set to become the first Hispanic to sit on the bench and only the third female justice, after O’Connor and Ginsburg. While diversity on the bench is a noble objective, Obama is taking a huge risk in nominating one of the most liberal activist judges on his short list.

During his announcement, Obama stated his requirements for a nominee, including a “rigorous intellect and mastery of the law” and more importantly “a recognition of the limits of the judicial role,” pointing out that judges must interpret, not create, law. Considering the latter, it is surprising that he would even consider Sotomayer in light of many damning statements she has made in connection with this principle.

Sotomayor made a huge flub by admitting that “the court of appeals is where policy is made.” After realizing that this statement could come back to bite her in her derriere, she inarticulately tried to backtrack. By now, most of you have already seen this, but just in case:

For those of you who don’t understand why this statement is such a huge deal, see the United States Constitution. There are specific powers delegated to each branch of our federal government. Article I governs the Legislative Branch, and gives Congress the power to “make all Laws.” There is nothing in the Constitution that gives the Court the power to make law or social policy when they disagree with Congress.  Similarly, the Court cannot interpret the Constitution in a way that advances their own political ideology. That is why the Founding Fathers included an amendment process in the Constitution to account for any imperfections or holes in the document. However, some justices feel that it is their job to rewrite the Constitution to their liking – and this is exactly what Sotomayor’s record indicates that she will attempt to do.

Obama continued to outline his requirements in his address, commenting that mastery of the laws and respect for judicial limits are alone insufficient – we need something more in a nominee –“experience.”  But the “experience” that he is talking about is not appellate court experience, but experience that allows a justice to “empathize” with others. Remember the comment he made during his campaign:

[W]e 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. And that’s the criteria by which I’m going to be selecting my judges.

According to Obama, justice is apparently NOT blind. This comment is in perfect alignment with the views of Sotomayor, who has previously 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.” This statement is a slap in the face to our Founding Fathers. They envisioned the Court as a neutral arbitrator, similar to a referee in a sports game. Would you want a referee to administer the rules of the game based on which team they like more? Maybe a team hasn’t had a chance to win the Super Bowl, while their opponent has won it 7 times - so they bend the rules a little to stick it to the successful team.  Is this a fair application of the rules?  Even more important, the Court is bound by precedent, which creates a stable and predictable judicial system. However, when we allow judges to take into consideration their own prejudices and political ideology, the outcome does not reflect an even-handed application of the law and instead reflects the bias of whichever judge you happen to appear before.

Obama concluded that “I hope the Senate acts in a bipartisan manner, confirming her as swiftly as possible.” In the wake of even more swift and reckless action by Congress in passing sweeping and destructive legislation without contemplation (i.e. without even reading bills before voting), it would be a disservice to the American people to confirm a justice having life tenure on our highest court without a rigorous and searching inquiry into their judicial philosophy and fitness to be a impartial arbiter.

More on Sotomayer’s judicial record and other disconcerting information later…