Republican cites Suffolk law article to hit Sotomayor
It's day three of Sonia Sotomayor's confirmation hearing, and day two of questions and answers, and if Republicans want to derail her nomination to the Supreme Court, they'll have to do better today in knocking her off stride.
In the first day of questioning on Tuesday, Sotomayor bobbed and weaved and ducked to avoid controversy, though she did back away from her controversial 2001 remark that a "wise Latina" could more often reach better judgments than a white male.
The first inquisitor this morning, Senator John Cornyn, a Texas Republican, tried to trip up Sotomayor by citing a 1996 Suffolk University Law review article that conservatives have asserted shows that she is a judicial activist who wants to legislate from the bench.
The article, adapted from a lecture she gave to Suffolk law students in Boston, is entitled “Returning Majesty to the Law and Politics: A Modern Approach.” (Read it here.)
In it, Sotomayor, then a federal district judge, says that, "The law that lawyers practice and judges declare is not a definitive, capital 'L' law that many would like to think exists."
She goes on to say to that confidence in the legal system is hurt because the public "expects the law to be static and predictable."
"The law, however, is uncertain and responds to changing circumstances," she adds. "Our society would be straitjacketed were not the courts with the able assistance of the lawyers, constantly overhauling the law.... Much of the uncertainty of the law is not an unfortunate accident: it is of immense social value."
Sotomayor, not surprisingly, had a different explanation for her remarks than her conservative critics.
She told Cornyn that her speech was given in the context of telling young lawyers to avoid cynicism about the legal system and to be engaged in explaining the law to public. Her point, she said, is that there is social change and Congress is passing laws all the time, and judges have to aware of that.
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Georgetown law professor Mike Seidman writes:
I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? …
Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.
Can someone please tell me what these conservatives mean by judicial "Activist" ? It seems that they're trying to put a label on any judge who reaches a decision with which that they disagree. Now, when there's a judge who reaches a decision that the agree with, why is that NOT "judicial activism'?
Please continue with the cross-examination of this nominee. Every exchange reinforces that this judge is an excellent choice for the highest court in the land.
You use words such as ..derail , trip up , bobbed and weaved and ducked , knock off stride , ... This is a process to find out who she is, add more insight to her record. You have painted a negative picture of "doing battle" here .... Stick to the facts and report them, isn't that what jounalists are supposed to do ?
Spot on, Tom J!
The law, however, is uncertain and responds to changing circumstances,"
Please explain to me how this makes her an "activist judge"? Slavery used to be upheld by the law, so was prohibition, women couldn't vote, and before that only white men who owned property could vote, There are so many other laws that have changed!
There are so many things in the constitution and the bill of rights, and laws of states and towns that are open to interpretation - the interpretation of the thinking of the times.
Seems to me some of these Congressmen need to go back to school and learn their history!
Sotomayor is much more intelligent then the bone heads asking the questions.
How touching- pretending something written by a law review actually matters
Watch the testimony - her eyes blink rapidly when answering a difficult question. She's lying (under oath) and unqualified for the Supreme Court. Imagine if she were a conservative up in front of the Democrats - think she'd get off as easy as the Rebublicans are letting her?
And this was the most qualified jurist in the land that Obama could find? Who's he paying back for this one?
Pat,
You are absolutely correct in that the law changes. HOWEVER, the difference is that Congress and the Executive Branch of the government change the laws, NOT the judicial branch. They make sure the law is constituional. Judges should not change laws but ensure they are just and fair.
Activist judges don't apply the law as it is written. They view a case and they make a decision that runs counter to the law when they disagree with the law as it pertains to the case at hand. We have had judges who have applied European laws to cases or used their personal opinion. Heck, even here in Massachusetts the court essentially changed the law on gay marriage. Judges are supposed to use the law as written by the state or the federal government when judging cases only. If they do not like a law or that it may be too narrow then they need to make a recommendation to the state legislature or to Congress. It is they and they only who can make law or edit existing law. When judges start making law from the bench or amend the law to apply to the case at hand that is when they earn the label "activist judge."
We have three branches of government for a reason (Judicial, Legislative and Executive for those of you who don't knwo what they are. Each has specific responsibilities. The Legislative branch makes laws and the Judicial branch applies those laws. Legislating from the bench is not their job.
"There are so many things in the constitution and the bill of rights, and laws of states and towns that are open to interpretation..."
However, if your name is Antonin Scalia, "interpretation" is but a narrow, one-way alley. Interpretation means "if it's not there, the law doesn't apply." Interpretation means "what was the intent of the 18th century white men who penned the bill of rights"?
Please! It's the 21st century. No one in the 1780's could have envisioned the 21st century. Laws, and interpretation of them, must evolve and change.
So according to the headline, Republicans are now trying to "hit" Sotomayor -- like a hit job?? Um, it's actually called searching for the truth.
This is journalism as usual for Foon Rhee, whose every article is over the top for its disdain for Republicans.
Judges are a must evaluate the laws written by Congress. They do not simply apply law -they interpret whether laws are constitutional. Law is not static. Decisions are often based on precedents set by earlier cases. Law evolves, and it would be in a judges best interest to recognize this. Sotomayor makes sense.
"Judges are supposed to use the law as written by the state or the federal government when judging cases only. If they do not like a law or that it may be too narrow then they need to make a recommendation to the state legislature or to Congress. It is they and they only who can make law or edit existing law. "
This is totally contrary to the way a constitutional society functions. For more than 200 years, American judges have practiced 'judicial review' where they strike down laws made by Congress. The judicial system was created to keep the Legislature in ccheck and void unconstitutional laws legislators enact. Judges are meant to control the majority (Legislators) from imposing laws contrary to the liberties and rights of the minority. This is how a democratic government functions and how American law has always worked, all the way back to Marbury v. Madison.
She should answer the questions. Biden wouldn't tolerate evasiveness in Bush choices. Same crap, different regime. And no, she is not the third coming. She will not save us all. She will no doubt merely add to the existing mess using her Latina powers.
When Foon Rhee writes an article, don't bother reading it. Foon Rhee is simply a mouth-piece for the left . Nothing Foon Rhee writes will ever be confused with decent journalism.
Medfield5,
No, she isn't the third coming. No, she will not save us all. She will just be a well-qualified, intelligent Supreme Court Justice who will do a fine job of interpreting the law.
Do such extreme statements pass the laugh test in your world? "We're having pasta for dinner..." "Pasta is the third coming! It will save us all!!!"
Gain some perspective.
Airjer is sort of correct in defining what makes a judge an "activist." The problem, however, is that much of the discussion about so-called "judicial activism" doesn't apply anything close to Airjer's definition. Republicans have continually labeled any decision (or judge) they disagree with as activist, whether that label fits or not. Sotomayor, for example, was applying existing Supreme Court precedent when she ruled against the New Haven firefighters. That's the antithesis of "judicial activism." But did that stop the Republicans from labeling that decision (or her) activist? Of course not. The same can be said for conservative criticism of the Supreme Court's Kelo decision, which held that the Constitution does not prevent a local government from taking private property through the power of eminent domain. The (liberal) majority in Kelo ruled on the side of legislatively passed laws -- it was the dissenting conservatives who wanted to "legislate from the bench" by overturning a democratically passed law.
I completely agree with Professor Seidman. It is sad that Judge Sotomayor is being so dishonest. The Suffolk Law School Article is a thoughtful nuanced presentation and it reveals the hollowness of the present "Fidelity to the Law" mantra we are now being fed. The simplistic attacks and superficial questions by Republicans who oppose Sotomayor as an "activist" lack substance for anyone trained in the law and do not justify her descent to the same level. These hearings could have been a teaching moment to help educate the American public about what Judges do. Instead Judge Sotomayor seems determined to perpetuate ignorance in order "win" her confirmation. The price is too high. I am an Obama supporter and a liberal Democrat and the Judge has now lost my support.