Sotomayor Nomination: Wrap-Up and Going Forward

To: JCN Members and Interested Parties
From: Gary Marx, Executive Director, and Wendy E. Long, Counsel
Date: August 6, 2009

Re: Sotomayor Nomination:  Wrap-Up and Going Forward

The nomination of Judge Sonia Sotomayor has provided some unexpected silver linings in the long-term fight for judicial restraint and responsibility.  It would have been hard to imagine, little more than two months ago, that this first Obama nomination to the Supreme Court would produce:

•        The most unpopular confirmed Supreme Court nominee ever in polls.

According to prominent nationwide polls, fewer than half of Americans supported the Sotomayor nomination and just as many opposed it.  Even Hispanic voters were almost equally divided, even though she was the first Latina nominee to the Supreme Court, and according to another poll, the Obama support rating among Hispanics actually dropped 7% the week after the Sotomayor hearings.  The Rahm Emanuel /Obama White House hardball identity politics play, in other words, did not work.

            As Sen. John McCain (R.-Ariz.) noted, Judge Sotomayor’s life story was “inspiring and compelling,” but so was that of Miguel Estrada, whom the Democrats smeared and filibustered seven times in order to prevent the ascendancy of a Hispanic Republican nominee to the Supreme Court.  The reason for Judge Sotomayor’s low approval ratings are that Americans of all races and ethnicities know the real test of a judge is not ethnicity or background but the ability to be impartial and to dispense equal justice under law.   

•        The nominee refuting the liberal judicial activist philosophy of the President.

            Barack Obama repeatedly stated -- as a Senator, a candidate, and as President – that he believes judges should decide “the difficult cases” based upon the judge’s own personal views, experiences, and beliefs – what he sometimes called “empathy” or what is in the judge’s “heart” – instead of what is written in the laws of our democratic society.  We have known for some time that the American people overwhelmingly reject this liberal judicial activist philosophy of the courts.  

            What we did not expect – and what was, frankly, shocking – was Judge Sotomayor’s flat rejection of the Obama judicial philosophy on the witness stand before the Senate Judiciary Committee.  She set forth a view of the role of the Court that matched that of Chief Justice John G. Roberts and President George W. Bush.  

            Her testimony embracing judicial impartiality and “fidelity to the law” was in considerable tension with her long record of siding – inexplicably and without any respectable legal analysis – with the liberal-left-favored parties, causes, and outcomes in the “difficult” cases.  Her testimony was also at odds with her long record of speeches and articles asserting, among other things, that impartial judging is not really possible, that her own personal background and beliefs affect the “facts [she] choose[s] to see” as a judge, and that it’s fine for a judge to “develop a novel approach [and] push[ ] the law in a new direction.”

            The disconnect between The Sotomayor Record and The Sotomayor Testimony gave some Senators concern about her truthfulness under oath before the Judiciary Committee.  But her vigorous rejection of the Obama Standard of judging signals an important capitulation in the battle over the proper role of the courts in our constitutional republic.
            
•        The frustration of liberal left activists.

            Although Judge Sotomayor was confirmed, it was not a resounding victory for the liberal view of the Court:  in fact, just the opposite.  Because she failed to uphold the liberal view of the Constitution and judging, she has made it more difficult for future Obama nominees who would attempt to be more intellectually consistent and honest.  President Obama, the darling of the liberal left, failed – when he had the greatest capital to spend on a nomination of his choosing – to put a powerful and unabashed liberal lion, in the mold of Justice William Brennan, on the Court.     

            This has unnerved the liberal left and put President Obama into a box.  Judicial restraint has won, and judicial activism has lost.  Some who voted for Judge Sotomayor, such as Sen. Ben Nelson (D-Neb.), specifically did so because he concluded she was “not an activist.”  Although Sen. Nelson plainly made an analytical mistake, at least he had the right goal in view.  Accordingly, future nominations promise to focus on the nominee’s actual adherence to the practice of judicial restraint.  And future liberal activist nominees who have not penned the inexplicable, analysis-free opinions that Judge Sotomayor generated in important cases may find their records harder to hide from.

•        31 “no” votes in the U.S. Senate.

            It’s remarkable, and a real show of strength for proponents of judicial restraint, that the negative vote on this nomination was so high.  The “historic” nomination of the first Hispanic nominee to the Court, made by the purportedly “post-partisan” President Obama, who at the time enjoyed high personal popularity and was still in his post-inaugural honeymoon, with a commanding 60-vote supermajority of Democratic votes in the Senate, could not muster even close to the 78 “yes” votes that Chief Justice John Roberts received.  The 31 votes against Judge Sotomayor are the highest “no” vote on any Supreme Court nominee picked by a Democratic president since 1894.

            And this record opposition to a Democratic nominee occurred on a straight up-or-down vote, following a nomination process that Judge Sotomayor herself said was fair and respectful;  Republican Senators never stooped to the common Democratic tactics of personal attacks and obstruction.  They asked tough questions, reflected thoughtfully, and discharged their constitutional job of “advice and consent” promptly.

•        Intensified public focus on the Constitution and the role of the Court.

            The Sotomayor confirmation process highlighted the problems of a liberal activist judiciary.  Judicial activism is not (contrary to what many liberal commentators and Senators have insisted) simply when the Supreme Court overturns an act of Congress.  It is when judges invent “rights” that don’t exist in our written Constitution, or conversely, when they fail to uphold the provisions of our written laws.  Activist judges do so based upon illegitimate bases for decisionmaking, such as the Obama standard of what’s in a judge’s own “heart” or some supposedly superior international moral consensus.

            The extraordinary efforts that Judge Sotomayor made to distance herself from her own record are a measure of how troublesome her activist record and philosophy are for the great majority of Americans, who already supported judicial restraint by a margin of about 3-to-1.  The Sotomayor nomination enhanced public understanding that judicial restraint is not just about the outcome of court decisions, but about the basis on which those decisions are made.

            Judge Sotomayor’s court was the first appellate court in the wake of the U.S. Supreme Court’s D.C. v. Heller decision to consider whether the Second Amendment right to keep and bear arms is a “fundamental” right that applies to the states.  In a single-paragraph analysis that ignored a century of Supreme Court precedent involving fundamental constitutional rights, Judge Sotomayor rejected the argument that the right to bear arms is “fundamental.”
 
            In the Ricci v. DeStefano case, she threw out the racial discrimination claims of firefighters who had studied hard to succeed on a promotion exam.  With no reasoning or analysis, she sided with a municipality effectively promoting a racial quota.  She would have permanently buried the firefighters’ claims, had it not been for her fellow Judge, Jose Cabranes, reading about them in the local newspaper, leading ultimately to the U.S. Supreme Court reversal of Sotomayor’s decision.

            Judge Sotomayor testified misleadingly about foreign and international law to try to avoid her clear embrace of American judges being influenced by such illegitimate sources in their decisions.  In a speech to the ACLU in Puerto Rico just a month before her nomination, she spoke approvingly of the Supreme Court’s “adopting the reasoning” of foreign law specifically in cases where it is not required by the American Constitution and laws.

            These are only a few examples of many in which Judge Sotomayor’s views and decisions are characterized by judicial activism, as properly understood.  These last few weeks have been a “teaching moment” that we can build upon in the long-term battle to restore the proper limits on judicial power in our constitutional republic.