Sotomayor and Whitehouse

By Michael J.W. Stickings

Sonia Sotomayor will be confirmed easily by the Senate, with substantial Republican support, but Conservatives like Dear Leader Rush will continue to take ugly swipes at her, just as they have all along. But no matter. She is, as she proved once again yesterday, with her opening statement, a remarkable woman and an impressive jurist. Yes, she said all the right things, and her statement was nothing if not carefully crafted, but there is no denying, I think, her qualifications for the highest court in the land, not to mention her devotion to the law:

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress's intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

Yes, yes, her critics can point to this case or that as, to them, an all-too-revealing exception, and they can point to her race and/or gender as, to them, cause for immediate disqualification (according to their double standard, a woman of colour is fundamentally a product of her "identity," and a racist/racialist when she discusses race, but a white male is above it all, as if his perspective is not that of the privileged), but she has her record to counter their lies and smears.

She has been appointed by Democrats and Republicans alike. She believes in the law, and in the judge's primary responsibility to apply the law fairly to all. She is a woman of colour with an inspiring background and a wealth of experience from which to draw, not so as to make up the law but so as to understand the world around her -- to relate to that world, to its good and evil and everything else in between, to the richness and diversity that appears before her in her capacity both as a judge and as a human being.

Sonia Sotomayor will make a very fine Supreme Court justice.

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Speaking of impressive, how about the opening statement (via Benen) of Sen. Sheldon Whitehouse (D-RI), which included this:

In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about "activist" judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes.

It is fair to inquire into a nominee's judicial philosophy, and we will here have a serious and fair inquiry. But the pretence that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history.

I particularly reject the analogy of a judge to an "umpire" who merely calls "balls and strikes." If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.

The "umpire" analogy is belied by Chief Justice Roberts, though he cast himself as an "umpire" during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that "[i]n every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, "has served the interests, and reflected the values of the contemporary Republican party"? Some coincidence.

For all the talk of "modesty" and "restraint," the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some "balls and strikes." Over and over, news reporting discusses "fundamental changes in the law" wrought by the Roberts Court's right wing flank. The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

Very, very well put.

Liberals and Democrats need to fight back against the myth, propagated by the right and regurgitated by the media, of conservative judicial neutrality. Whitehouse's statement was exactly what needed to be said.