Friday morning I listened to a local radio talk show host discuss Sotomayor and some of her (what he considered negative) connections. Later in the day I did a little research and found that he was stretching the truth. Friday afternoon I listened to another discussion on the radio. The person being interviewed was pro Sotomayor and said Republicans would be making a grave mistake to block Sotomayor's nomination.
For the record, should anyone doubt, I oppose Sotomayor's nomination. However, I do not believe she is the demon she is being made out to be by some on the right. She has a positive story of rising above her circumstances and has become successful in her chosen profession. My opposition to her nomination is based on principle. I believe we have very different views on the Constitution and the American justice system.
Consider Sotmayor's comments from a 2001 speech, "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." Responding to the controversy, the President said, "If you look in the entire sweep of the essay that she wrote, what's clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through, that will make her a good judge."
At Duke Law School in 2005, Judge Sonia Sotomayor said that "the court of appeals is where policy is made." Again, we do not have the full context, but I believe she meant what she said. On the recording of this speech she joked to the effect that she probably should not be making such a statement.
Without interjecting myself into a discussion about these statements, a discussion that has gone on for days, I think it is safe to say that Justice Sotomayor will be a Supreme Court justice in the liberal tradition. How she will judge will not be known until she takes her seat in the court. Possibly, she could suprise us, as did Justice Souter. However, based on her record and such statements, she may well live up to President Obama's chief qualification for a Supreme Court justice, "quality of empathy, of understanding and identifying with people's hopes and struggles."
Having such traits as empathy and understanding are wonderful traits for any person to possess, including judges. But when sitting on the court, the role of the justice is to make judgment on the law and order its execution. Fairness based on the law, regardless of race, religion, social status, or any other factor is essential. No single group should be given an advantage in the eyes of the law. The comments by Justice Sotomayer and President Obama, seem to indicate they believe the disadvantaged should be given an advantage in the courts.
Consider the statement by Barak Obama in a 2001 interview on Chicago Public Radio. "The Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, as least as it’s been interpreted, and the Warren Court interpreted in the same way that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted."
It is clear from this interview that Obama believes that the courts should take a more active role in changing the course of society. This is what he is seeking in the nomination of Justice Sotomayor.
Frankly, I believe in "the essential constraints that were placed by the founding fathers in the Constitution." One of the incredible parts of the Constitution that has made it so successful is the distribution of powers between the three branches of government. Article I, Section 1 states, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The legislature is the people's representative for determining laws and making changes in government. The role of the court is to determine if those laws pass Constitutional muster. It is not the role of the court to come up with ways to fix the ills, or perceived ills, of society. It is my belief that such rulings as Brown vs. the Board of Education, Roe vs. Wade, and the Massachusetts ruling on gay marriage exceeded the role of the courts. Such changes, if needed, are the domain of the legislative branch who represent the people.
We see both the executive and judicial division of government encroaching on the domain of the legislative branch. In his farewell address, President Washington stated that, "The spirit of encroachment tends to consolidate the powers of all the departments in one and thus to create, whatever the form of government, a real despotism."
The Democrats have a majority in the Senate. In all likelihood, her nomination will be confirmed. I believe the role of the Republican minority is to point out what her confirmation will bring. If Americans continue to elect representatives who favor an active judiciary, then the people need to know what it is they have chosen.