On July 13th, 2009 the U.S. Senate convened hearings to consider the nomination of Federal Appellate Court Judge Sonia Sotomayor to the highest court in the land. The Sotomayor confirmation hearings are the latest chapter in a Constitutional conflict almost as old as our country. This great debate began shortly after the Constitution was ratified in 1788 when Thomas Jefferson and Chief Justice Marshall conflicted sharply over interpretation of the Constitution. A hundred years ago the great American jurist Charles Evans Hughes remarked:
"We are under a Constitution, but the Constitution is what the judges say it is."
The questions surrounding Constitutional interpretation by Supreme Court Justices remains unsettled to this day and is the centerpiece of the selection process. The importance of selecting Supreme Court Justices is magnified when considering that they are appointed for life, thus correcting a poor choice takes many years.
Simple Process…
In some respects selecting a Justice for the Supreme Court is a relatively simple process; all of the nominees are highly intelligent, posses a distinguished legal resume, and generally are of high character. This eliminates the salaciousness and surprises (failing to pay taxes for example) that often accompany hearings related to other Presidential appointments. Unfortunately, it does not eliminate partisan politics from influencing the confirmation hearings. Judge Sotomayor is an intelligent, honorable woman and an accomplished jurist, but that may not be enough to ensure her confirmation.
Political Affiliation
Sotomayor has ties to both political parties; she was originally appointed to the bench by Republican President George H.W. Bush and later promoted to the Appellate Court by Democratic President Bill Clinton. This political neutrality speaks to her ability rather than her loyalty to a particular party, but is disquieting to Senators voting to confirm or deny her nomination to the Supreme Court. If politicians had their druthers judicial nominees would be forced to state their opinions on important issues without having a case brought before them and then they could simply match their political ideology to respective nominees. To make matters worse, the vocabulary used in Constitutional interpretation further confuses the evaluation process.
Sotomayor’s Interpretation of the Constitution
So how does Judge Sotomayor interpret the Constitution? No one knows for sure and that is what terrifies politicians. The Senators on the Judicial Committee have tried their best to get Judge Sotomayor to tip her hand but so far she has deflected every inquiry without committing herself to either political ideology. Judge Sotomayor has not stated her opinion on any major issue (abortion, gun control, eminent domain, etc.) nor should she until duty requires her to. The Committee has discovered that Judge Sotomayor is tough enough for the post and possesses a placid, controlled demeanor that undoubtedly served her well throughout her legal career.
Criticism of Sotomayor
Judge Sotomayor has been criticized for not following the rule of law (and therefore might be a judicial activist) and her opponents speculate that she would be too greatly influenced by her background and heritage when ruling from the Supreme Court.
These are serious concerns, unfortunately for her critics there is no evidence that Judge Sotomayor has ignored the rule of law or intends to be a judicial activist. That would be an unacceptable ethical violation for any judge, particularly a member of the Federal Appellate court. Judge Sotomayor has an exemplary ethical record. There is some legitimate criticism of a ruling in a reverse discrimination case brought by New Hampshire firefighters but it was hardly an affront to the rule of law. That ruling was unanimous by the panel of judges that heard the case so it was not a maverick verdict by Sotomayor. Further she has acknowledged that the US Supreme Court has narrowly overturned the decision (five to four ruling) and Sotomayor has not criticized the decision or the process. This case demonstrates that the Supreme Court did not agree with her (and her comrades on the Second Appellate Circuit bench) opinion in this matter rather than expose activist behavior. Oddly no one criticized her ruling in 1995 that ended the Major League Baseball strike or very few of other 3,000 appeals she has heard or the 380 judicial opinions she has authored.
Do we the American people want a Supreme Court Justice to ignore their experience and background when making a ruling? Is it even possible to disassociate yourself from your past in making decisions in the present? Judge Sotomayor is of Puerto Rican descent and a member of the Roman Catholic church. She was raised in a single parent household after her father died when she was nine. She attended Princeton and Yale on scholarship and excelled at both institutions. She married young and was divorced twenty-six years ago. She had a distinguished career as a prosecutor and civil litigator before her career on the bench. What’s in her background that is of such concern to keep her off the bench? There is not a long history of activism on or off the bench. There is no evidence of strong political affiliation, patronage or leanings. There is nothing in her background to suggest that she would be improperly influenced while serving on the Supreme Court, so let her rely on her considerable experience.
Decisions, Decisions
This article is not intended to advocate for the confirmation of Judge Sotomayor, but rather to advocate for the selection a GOOD candidate to such an important post. In is unfair that political wrangling convolutes an important vetting process. In his book The Partial Constitution, noted legal scholar Cass Sunstein explains the importance of this process while modifying Chief Justice Hughes’s quote:
"The Constitution does not mean only what the judges say it means… Its meaning to Congress, the President, state government, and citizens in general has been more important than its meaning within the narrow confines of The Supreme Court building."
The best case is for the American people is for a Supreme Court Justice to rule consistently and fairly on any given issue in accordance with the rule of law rather than adhering to a political agenda or engaging in judicial activism. It is fair to dig into Sotomayor’s ability as a jurist and her interpretation of the Constitution, it is unfair and irrelevant to disqualify her for other reasons. So far in the confirmation hearings there has not been a legitimate reason to deny the confirmation of the first Hispanic and third female Supreme Court Justice. She should not be confirmed because she is Hispanic or a female, but because she is eminently qualified for the job and that is all we can hope for.
