In a column on the confirmation battle over Supreme Court nominee Sonia Sotomayor this week, Washington Post columnist David Broder cites back to the 1987 battle over Robert Bork: “The Bork battle was historic; a sharp ideological fight that saw interest groups on both sides mobilize as if it were a Presidential campaign. When it was over, the conservative jurist – like Sotomayor a veteran Circuit Court judge – complained that when judicial nominees ‘are treated like political candidates,’ with searching examination not just of their credentials, but of their ideology and views on controversial issues, the effect is ‘to erode public confidence in the impartiality of courts, and to endanger the independence of the judiciary.’”
With all due respect to Judge Bork, without excavating the long and sometimes vivid political history of the Supreme Court, specifically, and solely with regard to the nomination of Judge Sotomayor, it is absolutely impossible to evaluate her credentials absent their decidedly political component, created by none other than Judge Sotomayor herself.
It is Judge Sotomayor who said that appellate courts are where “policy is made,” expressing candidly as well as disturbingly a major issue of concern to those who value the appropriate separation of government powers and to those who want to have confidence in the impartiality of the courts.
It is Judge Sotomayor who said and wrote her now oft-quoted “wise Latina woman” line, which in its context and out of its context is an expression of identity politics. In fact, if much of that speech were not so obscurely written, it would be far more explosive politically than it already is.
It is Judge Sotomayor who, in her Princeton senior thesis, described herself as a Puerto Rican nationalist who favored independence and referred to the U.S. Congress as the “North American Congress” or the “mainland Congress,” as revealed by historian K.C. Johnson, who read the thesis.
It is Judge Sotomayor who, while in private law practice, served on the board of the Puerto Rican Legal Defense and Education Fund, which engaged in numerous political/legal activities.
It is Judge Sotomayor who, prior to becoming a federal district judge, was a political activist and activist lawyer. Here’s a paragraph from a Washington Post examination of her activism: “When she became a judge in 1992...Sotomayor severed her ties with advocacy groups. Her social activism does not shed light on whether she has, as a trial judge or later on the appellate bench, been a ‘judicial activist’ -- the derogatory label conservatives sometimes apply to liberal jurists. Still, the causes in which Sotomayor took part for years suggest that she holds deeply rooted views on issues that remain part of the political debate today – and, in some cases, unsettled areas of the law.”
In the 1980s, Sotomayor was a founding member of the New York City Campaign Finance Board. She was a political appointee. The Board is institutionally divided among political party lines. Campaign finance has become a divisive political and constitutional issue, impacting core political speech, in issues that will be before the courts for decades to come.
Even after she became a judge, Sotomayor was a member of the National Council of La Raza, an Hispanic advocacy group involved in a host of political causes, although the organization says that Sotomayor’s involvement was minimal.
Political association is a fundamental right of our constitution, for all of us, including Judge Sotomayor. But the Supreme Court is the ultimate arbiter of this country’s law, including the Court’s impact on politics, not to mention the inherently political nomination and confirmation of justices – for life.
Judge Sotomayor’s politics and some of her views on law, as we understand them, disturb us greatly. President Obama’s politics and some of his views on law, as we understand them, disturb us greatly. Others, from different political and legal perspectives, from different backgrounds and worldviews, approve.
The President has made his choice, which is solely his to make. But to suggest, as some have, that Judge Sotomayor’s politics be ignored in the confirmation debate, is naïve and wrong. One of her prominent political supporters has rather crudely referred to her as “the whole package.” That “package” includes her politics, the discussion of which is as necessary as it is inevitable.June 4, 2009
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