Sotomayor Should Not Be Confirmed by the US Senate

President Obama’s nomination of 2nd Circuit Court of Appeals Judge Sonia Sotomayor should be met with resistance by those on both sides of the aisle in the US Senate. It is vital that those charged with the Constitutional mandate to consent to judicial appointments review the quality of the candidate and resist getting caught up in what the media, and the Obama administration, will paint as an historic event. The fact that the first Hispanic woman has been nominated does not release Senators from performing their enumerated power of approving judges for the Supreme Court.

Three separate issues immediately raise red flags to carefully examine during the Senate confirmation hearings. First, Sotomayor believes that judges make policy and create law. Second, she emphasizes that factors other than impartially applying law determines the outcome of cases. Finally, she fails to meet the high standards required of nominees for the Supreme Court and should be questioned on merit.

“where policy is made”

The Constitution clearly differentiates between the branches of government and explicitly enumerates the powers granted to each. It is in this “separation of powers” that much of the genius of the Founding Fathers is exhibited.

Article I of the Constitution explains that the legislature is tasked with making law, while Article III explains that the judiciary is limited to interpreting and applying the law. This is an important distinction and one that is meant to protect the citizenry. Members of the legislature are elected by the people and may be voted out of office for making, and passing, laws that are unpopular or ineffective. This is the mechanism by which the people control those representing their interests.

There is no such manner to remove judges. Judges are unelected officials, appointed for life, who can only be removed for egregious behavior through a lengthy impeachment process. The Founders did not want unelected officials dictating policy to the masses and imposing rules and laws without recourse. This was a chief component of the revolt which led to the creation of our Republic.

Herein lies the problem with Sotomayor’s judicial philosophy. She believes that judges, through the legal system, make policy and create laws. Her support for this can be found in video footage on any search engine (http://www.youtube.com/watch?v=OfC99LrrM2Q). Apparently, her education, years as a practicing attorney, and time as a judge have failed to introduce her to the text of the Constitution. Either that or she values her own intellect and experiences over the Founding legal documents which she has taken an oath to uphold and protect.

It is essential that judges apply the law as it is written by the legislative branch, unless the language of that law is deemed unconstitutional. In those rare instances where it is found to violate the text and intent of the Constitution, the specific law should be held null and void and the legislature should be forced to write better law. One of the most important values in courts applying law, and not creating it, is consistency and notice. The populace should know the law ahead of time so as to act in accordance with it. Judicial fiats remove this transparency and create chaos as citizens scatter in an attempt to comply with an ever-moving target.

“physiological differences”

As we all know, Lady Justice is blind. Statues of her show a cloth band covering her eyes as she balances the scales of justice. This is portrayed in accordance with the belief “that all men are created equal,” which was so eloquently espoused in the Declaration of Independence. The courts are intended to be the great equalizer, where any citizen can take a grievance and be heard on the evidence of the case and not judged by the physical characteristics he displays or the religious beliefs he holds dear.

Impartiality is the ideal and the measuring stick on which we determine the quality of the judge. Participants in the legal system desire to be treated the same as the person before them. Sotomayor does not hold these same virtues.

In her view, this impartiality is an ideal which can not be reached, and which she believes should not be sought. Although she claims that identity politics should not be practiced, Sotomayor believes that there are “inherent physiological or cultural differences” which influence legal reasoning and determine legal outcomes. The differences, which are inherent in each of us, mean that judges are incapable of always reaching the same conclusion.

She even went so far as to “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion that a white male who hasn’t lived that life” (You can find the entire text of her speech in the La Raza Law Journal in 2002 or at http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html). Surely she does not mean to say that white male judges are inferior or reach inferior conclusions.

These comments appear to fly in the face of the feminist and civil rights movements that have argued, successfully, that gender and ethnicity do not determine outcome. They go so far as to come across as sexist and racist (imagine a white male giving a similar statement if you doubt the validity of this comment).

Regardless, it seems illogical and inherently wrong to confirm someone that places such emphasis on gender and racial make-up rather than solely looking to the laws she is sworn to apply. Do these comments and beliefs instill confidence that judicial decisions will not weigh uncontrollable factors such as genetics when determining winners and losers in legal cases?

Merit

The US Supreme Court is the most prestigious court in the land. Seats have traditionally been reserved for the most qualified jurists and even some of those with great support fall short when held to the high standards the position requires. The Senate needs to carefully evaluate Sotomayor and determine whether she can clear this high hurdle and be seated next to some of the greatest legal minds of our generation.

Many will immediately point to her educational credentials. She graduated with high honors from Princeton, was accepted to Yale Law and finished at the top of her class. These are impressive feats and show dedication and intelligence. Supporters will also discuss her time as a practicing attorney, her appointment to the US District Court, and her eventual rise to the 2nd Circuit Court as evidence of her vast experience and understanding of how the law really works. These are all valid arguments but fail to paint the entire picture of her as a jurist.

It is one thing to be a good student or trial attorney or trial judge, it is an altogether distinct task to work as an appellate court judge. The appellate court judge must review arguments based upon the Constitution, procedural rules, and novel concepts not yet agreed upon by the courts. The Circuit Courts may take these appealed District Court cases and hear arguments. In some instances, their decisions get appealed to the US Supreme Court for a final opinion.

This makes the Supreme Court the final arbiter of legal decisions on the federal level. Sotomayor has had six cases get appealed to the highest court in the land. Three of those decisions were overturned. One was upheld, though the Court’s opinion stated that her reasoning “flies in the face of statutory language.” In other words, she got to the right conclusion but took the wrong path to get there. A fifth case was upheld and there does not appear to be any problem with her analysis. The final case is in front of the Court now and is likely to be reversed (the case deals with the discrimination claim made by several white firefighters against the city of New Haven, CT). Taking the likely reversal in front of the Court now, she has had two of every three decisions reversed. This means that she was right only once in every three attempts and it appears that one of those three was by pure chance.

Merit dictates that Sotomayor is not fit to serve on the US Supreme Court. Failing to reach the proper conclusion 66% of the time is a failure and is a record not worthy of the highest court in the land; this becomes even more apparent when taking her other faults into consideration.

Republicans and Democrats alike need to thoroughly examine this nominee, her judicial philosophy, her impartiality, and her success as an appellate judge. During the confirmation process, each Senator must analyze the jurist and look beyond the accompanying distractions. They must ask themselves whether they value the Constitution, our Founding documents and principles, the progress we have made in putting race and gender behind us, and the notion that only those candidates of exceptional intellect and judgment will be confirmed to the highest Court. In doing so, our elected representatives can demonstrate that they truly value the virtues they spend so much time espousing in front of cameras and deny this nominee her appointment.