Sonia Sotomayor: Just What is an Activist Judge Anyway?

Should judges make law? Do judges make law? Barack Obama's first appointment to the Supreme Court says yes to both. Does that make for an activist judge? It depends on who you ask.

It is good that we illustrate the diversity of America by diversely representing ourselves. I am not against having a Hispanic Supreme Court justice, but if Barack Obama wanted a truly deserving first Hispanic Supreme Court justice, he could have done much better than Sonia Sotomayor.

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If you ask a classical liberal (what we call these days a "conservative"), they will tell you that judicial activism

I'm all for creating "a historic day for the Hispanic community". I just think it would be much more historic if a truly deserving Hispanic became a member of the Supreme Court of the United States.

involves a judge making or changing the law instead of just interpreting and applying it. If you ask a "new" liberal (what we call a "liberal" these days) the same question, they will tell you that an activist judge is merely anyone that a classical liberal disagrees with. It is a less than clever skirting of the argument, and it is a tacit admission by progressives that they know that activism from the bench is wrong.

An activist, by definition, is
an especially active, vigorous advocate of a cause, esp. a political cause.
By her own admission, Judge Sotomayor is a political activist.





Based on that statement alone, Sonia Sotomayor is not qualified to be a Supreme Court justice.

If we wanted a good first Black President of the United States, we should have voted for the guy who ran in 2000--Alan Keyes--but he was

Justices are perfectly free to give their opinions as to how the law should read, and they should perhaps use their position on the bench as a bully pulpit from time to time. Justices are not legally free, however, to decide what the law should be.

marginalized by the fearful Establishment. His credentials run circles around Barack Obama, who, based on the backtracking trajectory of his first 100 days, will eventually become more or less an embarrassment to his race.

In much the same way, if we want a good first

As we sink into the abyss of the legal confusion, where the law becomes whatever the most powerful want it to be, the last person we need on the Supreme Court is one who thinks that interpretation of existing law is really just a judicial policy game.

Hispanic Supreme Court justice, we shouldn't support Sonia Sotomayor. It has nothing to do with her race, but everything to do with her not understanding her job. Sotomayor's political activism is completely unbecoming of membership in the highest court in the land. Based upon her history of extralegal (read anarchical) judicial decisions, she, too, will eventually become an embarrassment to her race.

Justices are perfectly free to give their opinions as to how the law should read, and they should perhaps use their position on the bench as a bully pulpit from time to time. Justices are not legally free, however, to decide what the law should be.

As we sink into the abyss of the legal confusion, where the law becomes whatever the most powerful want it to be, the last person we need

It has nothing to do with her race, but everything to do with her not understanding her job.

on the Supreme Court is one who thinks that interpretation of existing law is really just a judicial policy game.

I'm all for creating "a historic day for the Hispanic community". I just think it would be much more historic if a truly deserving Hispanic became a member of the Supreme Court of the United States.



Comments

  1. I think classical liberals could support some activism from judges to protect against the encroachment upon our individual liberties by tyrannical majorities.

    (Although allowing the government to be the arbiter in its own cases and controversies is somewhat akin to a lady's stationing of the key to her chastity belt on the bedpost while her lord goes off to war ... not much protection there.)

    Sotomayor's record shows that she's too deferential to the exercise of power for my taste. Sadly, her past as a prosecutor will only further endear her to conservatives.

    I recommend the debate between Antonin Scalia and Richard Epstein on judicial activism, as well as Roger Pilon's classic essay "Reclaiming the Constitution."

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  2. I'm pretty open to any appointment to the Supreme Court. Different people have different views on how the Constitution and statute should be interpreted. It's not that their necessarily trying to be activists, they honestly think that things should be interpreted more broadly than others like, say, Scalia does.

    I don't believe in the "Living Constitution" theory of interpretation that Breyer and other justices subscribe to (and maybe Sotomayor), but I think it's reasonable that they believe that theory just like I don't agree with "New Liberalism" but can see how people might think it's a good idea.

    After being in D.C. for both the Roberts and Alito hearings and seeing the Democrats go crazy over very qualified candidates, I think that the Republicans should confirm Sotomayor without hesitation unless they find out something really troubling about her. I don't think one pretty ambiguous quote about "making policy" qualifies for that.

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  3. As Frank knows, Justice Clarence Thomas rejects stare decisis, and voted to put the loser of the 2000 presidential election in the White House.

    That would be my definition of an "activist."

    Judge Sotomayor is probably the most conservative pick President Obama could have gotten away with.

    Sotomayor's views on the unconstitutional expansion of presidential power are unknown. If she takes a different position than Justice Souter, it would tip the balance of the court toward dictatorship.

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  4. RMWarnick demonstrates exactly what is wrong with the "Living Constitution" approach to the Constitution. Under Bush v. Gore, Bush pointed out that there was no standard by which all ballots were being judged as to how they should be counted. In some districts, election judges saw a "dimpled chad" as evidence of the "voter's intent." Other judges in a different county rejected it as an invalid vote.

    This complete lack of standards left the remaining count open to myriad problems leaving the results of the "recount" in the hands of a few unelected election judges.

    I understand your frustration with the Bush v. Gore decision. It comes across as problematic and as though there were some fixing of the election by the "conservative" justices. However, I would think that you would be more concerned with the four justices who wanted to allow such a obviously flawed recounting process to continue.

    The same goes for any interpretation of the Constitution. Are we looking for a consistent interpretation that relies on the language that was written? Or, are we going to deal with a fluid "standard" that bends and moves depending on the backstory of the parties in front of the Court?

    The Constitution was set out to create a government. The Founding Fathers were very wary of government and therefore started with the principle that a government only possessed those powers given to it by the people. Our Constitution should always be viewed in this light. Any nominee to the Supreme Court who feels otherwise is unqualified to sit on the bench.

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  5. The Bush/Gore recount fiasco was a lose-lose situation. I sometimes think that RMWarnick and others were just angry because Bush won. It wouldn't have been any better had the other dolt won, either. Under the circumstances, the state of Florida broke its own laws, and the Supreme Court called them on it. Regardless of which horse one was betting on in the 2000 presidential race, the Supreme Court made the right decision.

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