Judge Sonia Sotomayor: Making the Same Mistake Twice

This article was featured in The Bulletin (Philadelphia-area newspaper) on 6/1/09. You can view the newspaper version here, or check out the print column every week.

Like Barack Obama, who rose from an impoverished background to become the nation’s first African-American President, Judge Sonia Sotomayor has a powerful and inspirational life story. The daughter of immigrants, she grew up in a housing project in the South Bronx, and had to struggle through a difficult childhood without her father. Overcoming cultural and racial barriers, she went on to graduate from Princeton, and eventually from Yale Law School. Her appointment would make her the first Hispanic to serve on the Supreme Court. In Ms. Sotomayor, President Obama likely sees a reflection of himself.

But President Obama and Judge Sotomayor share more than inspirational life stories. They share a troubling and dangerous view of jurisprudence, informed by a liberal ideology that places emotional activism ahead of rational objectivity.

When Justice Souter announced his retirement a month ago, President Obama stated that future Supreme Court justices should have “empathy” for “people’s hopes and struggles,” and work to understand “the daily realities of people’s lives—whether they can make a living and care for their families.” On Tuesday, he praised Judge Sotomayor’s “experience being tested by obstacles and barriers, by hardship and misfortune…a necessary ingredient in the kind of justice we need on the Supreme Court.” President Obama made it clear: The courts ought to be governed by empathy, and legal decisions ought to be shaped by personal experience.

Similarly, Judge Sotomayor has stated that minority judges must consider their “experiences as women and people of color,” and allow such experiences to “affect our decisions.” She later went on to say that “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Like President Obama, Ms. Sotomayor’s statements shed light on her acceptance of judicial bias.

Perhaps most telling is Judge Sotomayor’s view on judicial activism: “The Court of Appeals is where policy is made. And I know – and I know this is on tape and I should never say that.” Her lengthy history of case law affirms this position, most notably in her now famous decision to essentially forward racial quotas in the New Haven firefighter case.

Thus, given her background and ideology, it should not be surprising that President Obama chose Judge Sotomayor as his nominee. He simply saw a reflection of himself: Inspirational life story; historic racial implications; liberal activist ideology.

As President, that ideology pulls Mr. Obama to attempt to right the perceived injustices in society through government intervention and control. As judge, that ideology pulls Ms. Sotomayor toward judicial activism and legal empathy. The first is dangerous, the latter unjust.

Judicial activism, in short, means that the courts make and shape law. When an activist court hears a case, it decides if the law in question is the right law for society, and rules accordingly. It seeks to alter or define the legal landscape.

The problem is that the creation of law is meant for the legislature. Legislators are supposed to serve as representatives of the people, and therefore work to create law that best serves their constituents. If the will or the composition of the people changes, or they do not like the law created by the legislator, citizens can affect change through elections. This is a true representative democracy.

The role of the judiciary, by contrast, is to uphold and maintain the rule of law in society. It is to interpret the intent of the law as created by the legislature, and hold it to the rigorous standard of Constitutionality. That is why legislators are elected, while judges are appointed. As a result, judges are not to serve as representatives of the people, but instead as adjudicators of the law established by those representatives. This structure allows for a measured government with checks and balances, the essential framework established by our founders. Ms. Sotomayor’s activism directly threatens this balance.

The heart of Ms. Sotomayor’s judicial philosophy can be found in her regard for empathy and personal bias; a view shared closely with President Obama. When a judge begins to make decisions based on subjectivity, personal experience, or empathy, that judge ceases to be an objective arbiter. It should not matter, as Ms. Sotomayor says, that she is a Latina woman, or as President Obama says, that she comes from a difficult and diverse background. If those factors play into the decision making process, then the law has become emotional and subjective. Clearly, along with her ideological leanings, Ms. Sotomayor was chosen for her championing of such empathetic jurisprudence.

The whole of the argument is best summed up by Manuel Miranda, chairman of the Third Branch Conference, who said, “The president has nominated a highly credentialed judge with an inspiring life story. Regrettably, he also tainted the nomination from its start by suggesting that his nominee would judge based on personal feelings and background, or be biased with empathy for particular classes of litigants.”

In Sonia Sotomayor, we see an eerie reflection of President Obama. In law, as in government, the prospects of liberal activism are both perilous and unjust—judicial restraint should not be politicized. We have already seen the damaging effects of liberal governance, and we simply cannot afford to make the same mistake twice.

-Matt Benchener from TruPolitics.net