Supreme Court Pick

Tuesday's World Events — Posted on June 2, 2009

(by Edward Lee Pitts, WorldMag.com) WASHINGTON — President Barack Obama nominated Sonia Sotomayor to the Supreme Court on Tuesday, kicking off what is likely to be a Senate summer debate over judicial philosophy.

Sotomayor, a 54-year-old U.S. Appeals Court judge, would be the nation’s first Hispanic justice if confirmed by the Senate.

Since Justice David Souter first announced his retirement several weeks ago, conservative groups have been firing warning shots claiming that Obama would pick a candidate who uses his or her own personal feelings in deciding cases. After Tuesday’s announcement of Sotomayor, these groups said Obama didn’t disappoint the left wing of the Democratic Party.

While announcing Sotomayor Tuesday at a ceremony in the East Room of the White House, Obama touched on the importance of respecting the rule of law when deciding cases-a trait that conservatives have stressed during the run up to this announcement. But he also highlighted Sotomayor’s experiences, saying they give her the “common touch” and “sense of compassion” needed on the bench-comments that conservatives are sure to refer to when expressing their concern that Sotomayor will legislate from the bench using her own personal feelings.

In her brief White House remarks, an emotional Sotomayor also gave a nod to the rule of law before making a statement that conservatives said displays the kind of empathy that they believe threatens judicial impartiality: “I strive never to forgot the real world consequences of my decisions on individuals, businesses, and government.”

Sotomayor critics have singled out her rejection of a New Haven, Conn., firefighters’ lawsuit charging reverse discrimination. The firefighters sued when officials threw out the results of written promotion tests because no African-Americans qualified. The case, Ricci v. DeStefano, is now before the U.S. Supreme Court.

Wendy Long of the conservative Judicial Confirmation Network said Sotomayor sided with a city that used racially discriminatory practices in denying the promotions: “Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy, and that one’s sex, race, and ethnicity ought to affect the decisions one renders from the bench.”

In reaction to this case, fellow Judge Jose Cabranes, a President Clinton appointee, chastised Sotomayor for siding against the firefighters.

Groups like the Judicial Confirmation Network have argued that what Obama has often called “empathy” in his public remarks regarding his ideal justice flies in the face of the image of a blind judge impartially using the laws-not personal feelings-to hand down decisions.

In a 2002 speech that conservative groups wasted no time in highlighting soon after Obama’s nomination, Sotomayor confirmed her belief that experiences should affect a judge’s decisions: “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.”

Despite 17 years on the federal bench, Sotomayor does not have an extensive track record on abortion rulings. In her one abortion-related case as a court of appeals judge in 2002, she sided with pro-life groups. She did not agree with pro-abortion groups’ arguments that President George W. Bush’s policy of barring federal money to overseas organizations that support or perform abortions violated Constitutional rights.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds,” Sotomayor wrote.

Obama’s confirmation team is likely to use Sotomayor’s compelling personal story as the centerpiece of their confirmation pitch. Sotomayor, of Puerto Rican descent, rose from a Bronx, N.Y., housing project to graduate summa cum laude from Princeton University. In law school, she edited the Yale Law Journal. During Tuesday’s White House ceremony, Sotomayor singled out her mother, tearfully sitting on the front row, who worked two jobs to support her family after Sotomayor’s father died when she was 9 years old.

“I’m an ordinary person who has been blessed with extraordinary opportunities and experiences,” Sotomayor said.

Obama also highlighted her legal resume that includes a stint in the Manhattan prosecutor’s office. Obama said she had more experiences than anyone currently on the Supreme Court when they were fist nominated.

Beyond her rise from humble beginnings, Sotomayor’s proponents have already stressed that she is a “bipartisan pick.” President George H. W. Bush first nominated her to federal district court in 1991. But that pick was part of a deal in place at the time that allowed New York senators to name one out of every four district court nominees. President Bill Clinton nominated her to the U.S. Court of Appeals for the 2nd Circuit in 1998. During that confirmation process, 29 Republicans voted against Sotomayor.

Obama has said he would like for Sotomayor to be confirmed by the Senate in time for her to take a seat on the bench when the Supreme Court reconvenes in the fall. But Republican senators have stressed that they will not “rubber stamp” the nominee and that they will push for adequate time to debate her qualifications on the Senate floor.

Senate Minority Leader Mitch McConnell, R- Ky., said Republicans would treat Sotomayor fairly: “But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

But with a large Democratic majority in the Senate, many expect Sotomayor to be eventually confirmed.

With the left-leaning Souter retiring, Mathew D. Staver, president of Liberty Counsel and dean of the Liberty University School of Law, said Sotomayor’s confirmation likely would not change the ideological makeup of the court.

Questions

1. Who is Sonia Sotomayor? (What do you learn about her background from this article?) (See. para. 2, 13, 15-16)

2. What is the main reason that conservatives do not approve of Judge Sotomayor's nomination?

3. What examples do critics give for opposing Judge Sotomayor's nomination? (see paragraphs 6-7, 10)

4. How did Clinton appointee Judge Jose Cabranes react to Judge Sotomayor's decision in the New Haven firefighters' case?

5. From para. 9 "Groups like the Judicial Confirmation Network have argued that what [President] Obama has often called 'empathy' in his public remarks regarding his ideal justice flies in the face of the image of a blind judge impartially using the laws - not personal feelings - to hand down decisions."
Why is it important for judges to make decisions impartially, based solely on the law?

6. What qualifications should a judge have, in your opinion? Explain your answer.

7. The judicial branch usually has the final say on such issues as religious liberties, abortion, gay marriage, gun laws, pornography, and the fate of suspected terrorists in the ongoing war on terror. What decisions might judges appointed by President Obama make on these types of issues?

8. In order to form your own opinion on this issue, you must understand what the controversy over the nomination of Federal judges is all about. Read the following three paragraphs that explain the difference in the opposing views on the role of a judge, as well as the "Background" below the questions:

Think about the role of a judge. Do you support the nomination of activist judges? Explain your answer.

The term "judicial restraint" refers to the idea that the role of a judge is not to make policy or establish new legal rights, but to interpret the law as written in the United States Constitution or in statutes passed by the legislature. Because the will of the people is best expressed through legislative bodies, judges must strive to adhere to the law as written even if, at times, the law is insufficient to deal with certain circumstances or conflicts with the judge's personal political views.
"Judicial activism," by contrast, refers to results-oriented judging, whereby a judge decides the outcome of a case based not on the law as written, but on his or her conception of what is just or fair. "Judicial activism" is often improperly confused with the power of "judicial review," which is the power of the judiciary to invalidate statutes that are in conflict with the United States Constitution.
Although the term "judicial restraint" is often associated with political conservatism, and "judicial activism" often associated with political liberalism, they are not properly categorized as such. "Judicial restraint" and "judicial activism" refer to the process or method a judge uses to reach a particular decision, not to the political ramifications of that decision. Political liberals and political conservatives are, at least theoretically, equally capable of exercising restraint on the bench. By the same token, judicial activists may use their authority to achieve either conservative or liberal results. As such, the terms "judicial restraint" and "judicial activism" are neither inherently "conservative" nor inherently "liberal."
From "A Primer on Judicial Restraint..." found at JudicialNetwork.com (in PDF format - must have Adobe Acrobat Reader to open) (from judicialnetwork.com/contents/readingroom/braceras_100102.pdf)

Background

On the Role of Judges:

Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call 'em as they see 'em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is "favored," without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)
"The role of a judge is to be a neutral interpreter of already established law, not legislator of new law or social policy. A judge can have his or her own opinions, even strong ones, and still read the law neutrally. Fundamentally, judges are expected to not bring their personal politics and philosophies to the bench. Judges are expected to read the law in its clear intent and apply it without regard to result. Changing the law should be left to the people and their legislators." Sean Rushton, Committee for Justice Executive Director, from the WashingtonPost.com.
"One of the big confusions in the...Senate fight over the confirmation of judicial nominees is that this is an issue about 'liberal' judges versus 'conservative' judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge's own philosophy...Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas. But activism can be used by any judge for any purpose." Thomas Sowell, Hoover Institution
As Ronald Reagan once noted, "[The Founders] knew that the courts, like the Constitution itself, must not be liberal or conservative." For Reagan and for the Founders, judges were to be selected based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning. Rather than scrutinizing judicial nominees based on their perceived political leanings, the ... president should appoint judges who apply the law regardless of their own policy preferences. (from "Misunderstanding the Role of Judges" by Deborah O'Malley)

NOTES ON PROCEDURE FOR NOMINATING AND CONFIRMING FEDERAL AND SUPREME COURT JUDGES:
*The President nominates a person, and sends the name to the Senate Judiciary Committee,
*The nominee is questioned by the Senate Judiciary Committee (confirmation hearings). If confirmed,
*The name goes to the Senate for a vote.
*If the full Senate votes to confirm a nominee by 51 votes (a simple majority) or more, the nominee is confirmed.

On the types of cases the Supreme Court hears:
Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. ... (from bensguide.gpo.gov)