May 27, 2009
By Deborah O'Malley
President Obama wants Second Circuit Judge Sonia Sotomayor to
fill Justice David Souter's seat on the Supreme Court. But her
nomination paints a grim picture of the Supreme Court's future for
those who believe the law should be interpreted according to its
says that an important quality in a nominee is the recognition
of the limits of the judicial role. Thus judges should "interpret,
not make law" and approach decisions with a "commitment to
impartial justice." With these words, it's curious he'd select a
nominee who disagrees.
Judge Sotomayor has made several public statements denouncing --
and even lightly mocking -- the idea that courts should be
impartial and shouldn't engage in policymaking. During a Duke
University panel discussion in 2005, Sotomayor stated: "All of the
Legal defense funds out there, they're looking for people with
Court of Appeals experience. Because it is -- Court of Appeals is
where policy is made."
She flippantly brushed off this statement, to laughter from the
audience. "And I know, and I know, that this is on tape, and I
should never say that. Because we don't 'make law,' I know. Okay, I
know. I know. I'm not promoting it, and I'm not advocating it. I'm,
you know..." She did not go on to clarify what she apparently did
mean, but the words speak for themselves.
This is not the first time she has publicly expressed bold views
on a judge's role. In a 2001speech at Berkeley School of Law she
advanced the idea Legal interpretations are inevitably and
unavoidably influenced by one's own experience and cultural
background, and that "impartiality" is just an "aspiration." She
ponders: "I wonder whether achieving that goal [of impartiality] is
possible in all or even in most cases." So much for blind
In the same speech, she was even so bold as to assert her "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." As Stuart Taylor has aptly noted, "Any
prominent white male would be instantly and properly banished from
polite society as a racist and a sexist for making an analogous
claim of ethnic and gender superiority or inferiority." During her
hearings, senators should demand an explanation for her radical
statements of ethnic superiority.
In addition to making statements about the importance of life
experience, Obama has also repeatedly stated that "empathy" is a
vital quality that he seeks in judicial nominees. Sotomayor's time
on the Second Circuit has given her ample opportunity to
demonstrate the role that "empathy" plays in her
Most notable is the case of Ricci v. DeStefano, in which
Sotomayor's three-judge panel sided with New Haven, Conn.,
officials who threw out the results of race-neutral fire department
promotional exams because they did not yield enough high scores
from African-American firefighters. When no promotions were given
as a result, Frank Ricci, a dyslexic white firefighter who came in
sixth in the competition for eight lieutenant spots, filed a
lawsuit with 19 other firefighters alleging racial
Some might feel "empathetic" toward a learning-disabled civil
servant who overcame the disadvantage by spending every spare hour
studying after he had a friend record his textbooks onto tapes.
Better yet, a constitutionalist would find the city's
race-conscious criteria to violate the requirements of Equal
Protection. But Sotomayor wasn't moved.
Like other liberal activists who assert the importance of
empathy, Sotomayor remarkably finds the need to reach into her
"heart" only when the litigant's cause aligns with her own. In
fact, as Clinton appointee Judge José Cabranes noted with
some frustration, Sotomayor's "empathy" with New Haven's position
was so relentless that she took unprecedented procedural steps to
bury the claims of the firefighters.
In an attempt to prevent effective review, Sotomayor's
three-judge panel originally issued a one paragraph summary order
affirming the district court's ruling, then withdrew it and issued
an unsigned opinion.
Neither the order nor the opinion made any attempt to seriously
consider the firefighters' arguments. According to Cabranes, they
did not even address the core issues in the case. Thanks to judges
like Cabranes, this attempt at evasion failed, and the case is now
being reviewed by the Supreme Court.
Obama uses the rhetoric of one who believes that judges should
be interpreters of the law and not policymakers, but his choice of
Sonia Sotomayor proves that such statements are just rhetoric.
Both her public statements and her attempt to smother the
arguments of litigants she disfavors (such as in Ricci)
reveal that she is no defender of the rule of law, but an unabashed
hard-Left judicial activist.
Deborah O'Malley is a Research Associate in the Center for Legal
and Judicial Studies at The Heritage Foundation
First appeared in Townhall.com
President Obama wants Second Circuit Judge Sonia Sotomayor to fill Justice David Souter's seat on the Supreme Court. But her nomination paints a grim picture of the Supreme Court's future for those who believe the law should be interpreted according to its original meaning.
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