Unwarranted criticisms


Ever since the President nominated Judge Sonia Sotomayor to replace Justice Souter on the Supreme Court, there has been quite a lot of hot air expelled throughout the media waves; the newest criticism from the political right is that Sotomayor is a racist, based on a comment she made during a speech at UC Berkley on 26 October 2001. [1][2] Meanwhile, her supporters both in [3] and out [4] of the Administration are closing ranks around her. Given that all of this furor stems from a speech she delivered in 2001 and whether or not her statements are taken out of context, it would certainly be worthwhile to read the actual speech, and judge for oneself; the statement in contention is about two thirds of the way through the speech. [5] Upon reading the speech, it seems that Press Secretary Gibbs is probably right; the statement is not racist when one reads/hears it in the context of the speech at large. Most likely, she chose her words poorly – which is not especially surprising, considering that (at the time) she did not know that her words might be read in the context of her nomination to the SCOTUS. [6]

Another criticism that has reared its ugly head is another comment (again, taken far out of context) Sotomayor made that is being spun as indicative of her activist tendencies. [7] For those who are not familiar with the term, judicial interpretation of the law can be seen as falling into a spectrum that has judicial activism at one extreme, and judicial restraint at the other. Judicial restraint in the SCOTUS is often seen as synonymous with “strict constructionism,” or the practice of interpreting the Constitution based on a literal reading of the text itself. Activism, on the other hand, refers to situations wherein judges “right the wrongs” of society by means of their rulings, when the legislature is seen as unable (and/or unwilling) to revise the law as appropriate. This “spectrum” has clear implications for any nominee to the SCOTUS, not just Sotomayor, as these tendencies are mutually exclusive of each other.

Regarding Sotomayor’s comments, she does, indeed, say that “[the] Court of Appeals is where policy is made.” [8] The transcript itself hints at the nature of her comment, but upon hearing it in its full context, it becomes clear that the comment is mostly in jest. [9] Regardless of whether or not her statement is truly accurate with regard to national affairs, [10] one can hardly argue that this constitutes a “smoking gun” with regard to her activist tendencies.

What I find most odd about both of these incidents is that Sotomayor’s most vocal critics appear to be going out of their way to find minor offhand remarks that illustrate characteristics about her that should disqualify her from the nomination (or so they claim). It is, of course, somewhat understandable, since the alternative for doing so is to wade through the records of her rulings to make a determination on either of these matters. And lets face it…that’s hard work, folks. Nobody wants to do that.

Given my druthers, of course, race would not be a factor in any legal issues, and we would not judges who saw it as their duty to expand (or restrict) the law at their whim. In a rational meritocracy, race would play no part, only one’s abilities would matter. Regarding judicial activism, simply put, it is not the place of the judiciary to make or enforce the law; their job is to interpret the law as it applies to a given disputed situation. Consider, for example, the following:

It can be of no weight to say, that the courts on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL [sic] instead of JUDGEMENT, [sic] the consequence would equally be the substitution of their pleasure to that of the legislative body. [11]

If Sotomayor truly is committed to a course of judicial activism, then her critics would do well to remember this passage when investigating her record to date. While the Framers may have considered the Judiciary to be the weakest of the three branches of our government, the Republic suffers when any branch takes upon itself the constitutional authority of another branch that should otherwise remain wholly separate. We can ill afford to have justices in the SCOTUS who tacitly approve of subverting the very essence of the Constitution.


[1]: Tom Tancredo’s comments available here, from The Atlantic, 27 May 2009.

[2]: Description of Newt Gingrich’s comments available here, from the San Francisco Chronicle, 29 May 2009.

[3]: White House press briefing transcript available here, from the White House website, 29 May 2009.

[4]: CNN commentary, 29 May 2009.

[5]: Have at it. Transcript of her speech available here, from the UC Berkley website.

[6]: Supreme Court Of The United States – try and keep up with the acronyms!

[7]: Washington Times editorial, 27 May 2009.

[8]: Transcript of Sotomayor’s comments available here, from CNN, 29 May 2009.

[9]: Video of Sotomayor’s comments available here, from YouTube (yeah, I know, weird that I’m using YouTube as a resource, but on the other hand, the audio present meshes with the transcript provided by CNN (see the note above), so it is likely to be genuine).

[10]: AP analysis, from the Associated Press, 27 May 2009.

[11]: Alexander Hamilton, The Federalist, Number 78, Paragraph 16.


One Response to “Unwarranted criticisms”

  1. […] I Dislike “Judicial Activism” Recent deployments of the phrase “judicial activism” on J’s Blog – regarding the Sotomayor […]

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