The Memorial Day weekend was barely over when President Barack Obama announced his choice of who would get his Supreme Court nomination. While most Americans were just beginning their holiday-shortened work week, we learned that the “empathetic” nominee the President had been looking for was Judge Sonia Sotomayor, on the bench of the U.S. Court of Appeals for the Second Circuit.
What we didn’t hear, however, was that both the President and his nominee believe more in the rule of a judge’s personal “experiences” and “perspectives” than in the rule of law.
Sure, that wasn’t what either explicitly stated in their remarks delivered from the White House on Tuesday morning. But that was what was perfectly clear if you listened carefully to what both meant, not to mention what both had said in the past.
To be fair, what Americans did hear if they tuned in to the carefully choreographed and scripted nomination announcement was that President Obama believes a Supreme Court justice must “[f]irst and foremost” possess “a rigorous intellect — a mastery of the law, an ability to hone in on the key legal issues and provide clear answers to complex legal questions,” and “[s]econd” recognize “the limits of the judicial role, an understanding that a judge’s job is to interpret, not make, law.”
Okay, that’s the typical boilerplate language — the perfectly obvious and universally accepted prerequisites to being confirmed to the singular Court that has the final word on what is, and what isn’t, “the supreme Law of the Land.”
But the President didn’t limit himself to that pair of requirements. According to President Obama, “We need something more” from our next Supreme Court justice because “th[o]se qualities alone are insufficient.”
Then it came, the President’s subtle acknowledgement that — in spite of his just stated and publicly acceptable criteria — “a necessary ingredient in the kind of justice we need on the Supreme Court” is “experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.” Or, in words President Obama had previously used to describe what he would look for in a justice, “the critical ingredient” of a fair jurist “is supplied by what is in the judge’s heart.”
Think about that for a moment. The President of the United States — the man whose constitutional duty and solemn oath is to “faithfully execute” the laws of the United States and “preserve, protect and defend the Constitution of the United States” — believes that “the critical ingredient” necessary in a Supreme Court justice is not to faithfully interpret and apply the laws and Constitution of the United States as written and enacted, but rather “is supplied by what is in the judge’s heart.”
That’s why the rest of the President’s introduction of his Supreme Court nominee focused not on Judge Sotomayor’s legal acumen or her judicial restraint, but instead on her “breadth of perspective that will be invaluable” because, according to the President, she has “a practical understanding of how the law works in the everyday lives of the American people.”
This was President Obama’s publicly acceptable way of saying now what he had argued more forcefully in the past — that a justice should make her rulings “on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In other words, a judge should “bring in … her own perspectives, … her own ethics, … her own moral bearings” in deciding cases — even when none of those have any relation to, and may even conflict with the law actually enacted by the political branches elected by “We the People.”
This is why the President thought it relevant to observe that Judge Sotomayor “will bring to the Court … not only the knowledge and experience acquired over [the] course of a brilliant legal career, but [also] the wisdom accumulated from an inspiring life’s journey.”
Like the President, Judge Sotomayor used subtle, publicly acceptable language at the ceremony to hint at her willingness to apply her personal preferences from the bench. Specifically, Judge Sotomayor explained that she always “strive[d] never to forget the real-world consequences of [her] decisions” – that was the nice and disguised way acknowledging that she allows her personal sympathies to play a role in her judicial decision-making process. In other words, for Judge Sotomayor, justice isn’t blind.
In past statements, Judge Sotomayor has been far more blunt. In fact, a little less than two weeks before President Obama nominated her, Judge Sotomayor was the subject of a New York Times story that strung together a number of the Judge’s previous speeches and statements that demonstrate just how activist she believes a jurist is entitled to be.
The statement that has gotten the most attention is her comment at a Duke Law School panel discussion for students interested in becoming federal law clerks, where, in touting the advantages of an appeals (rather than a trial court clerkship), Judge Sotomayor explained her belief that “the court of appeals is where policy is made.”
But even more frightening than Judge Sotomayor’s belief that it is entirely proper for unelected judges — rather than the American people’s elected representatives — to make policy is her belief that judges who make policy can do so on the basis of their own personal moral, political and policy preferences.
Indeed, as noted in that New York Times story — no bastion of conservative sentiment – “Judge Sotomayor [has] questioned whether achieving [judicial] impartiality ‘is possible at all, or even, in most, cases.” And, in that speech, Judge Sotomayor went on to add, “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
Those comments came in a revealing speech Judge Sotomayor gave at the University of California-Berkeley’s Boalt Hall School of Law in 2001, and the excerpts quoted in the New York Times piece were just the tip of the iceberg.
Later in the lecture, Judge Sotomayor stated unequivocally that “[t]he aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” As a result, Judge Sotomayor agreed with one of her former law school classmates, Harvard Law School Professor Martha Minnow, quoting her belief that “there is no objective [judicial] stance but only a series of perspectives — no neutrality, no escape from choice in judging.”
As a result, Judge Sotomayor not only stated her belief that “our gender and national origins may and will make a difference in our judging,” going on to make the even more incendiary remark that “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.”
Indeed, if it wasn’t clear from those comments, Judge Sotomayor went on to explicitly state her belief that it is entirely appropriate for her to impose her own personal moral, political and policy preference through her seat on the federal bench, explaining, “I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt … continuously to judge when those opinions, sympathies and prejudices are appropriate.”
All of this is, of course, more than troubling for a country that was founded on the principle of the rule of law and not of men.
As former U.S. Solicitor General and federal appeals court Judge Kenneth Starr told Fox News: “It’s not [a judge’s] job at all to make policy. It rather is for the Congress [or for the President] or for the governor or the legislature to make policy, and for [a judge] to interpret the law as given to [her].”
But that’s only if you truly and deeply believe that, under the rule of law, justice is and should be blind. The nomination of Judge Sotomayor to the Court has made it clear that neither President Obama, nor the nominee he chose, believe that to be true. Instead, they believe justice isn’t blind and so America’s rule of law must yield to the rule of men, and in this case, women. That should trouble all Americans.May 28, 2009
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