WASHINGTON — The nomination of Judge Sonia Sotomayor to the Supreme Court has recharged a conservative campaign to educate voters about judicial activism.
In his nomination remarks May 26, President Obama praised Sotomayor’s ability to achieve the American dream over an impressive 30-year career as a leading lawyer and judge. He also focused on her overcoming hardships.
During the presidential campaign and in the months after his inauguration, President Obama highlighted his criteria for choosing a Supreme Court justice. He sought a candidate with a stellar academic and legal record, but also one who possessed the “empathy” necessary to base his or her legal decisions not only on constitutional texts, but on human experience.
Thus, when he introduced Sotomayor, he said she will bring to the court “not only the knowledge and experience acquired over a course of a brilliant legal career, but the wisdom accumulated from an inspiring life’s journey.”
But critics describe the nominee as a judicial activist more likely to impose personal and political views than apply the Constitution. They worry that a judge chosen for his or her capacity for empathy as well as command of the Constitution might issue wrong decisions on issues such as “marriage” for homosexuals or abortion.
Raised in a South Bronx housing project by a determined single mother, Sotomayor graduated from a Catholic high school, then Princeton and Yale. If confirmed, she could become the sixth Catholic on the court.
NARAL (National Abortion Rights Action League) Pro-Choice America issued a press release that stopped short of endorsing the nomination. The New York Times reported on May 28 that some pro-abortion groups are wary of the appointment.Pro-life Catholics concerned with rolling back Roe v. Wade may conclude that Sotomayor poses little threat to their agenda. But Ed Whelan, president of the Ethics and Public Policy Center, a Washington, D.C., think tank, argues otherwise.
“Judicial activism matters a lot,” said Whelan, a former staffer on the Senate Judiciary Committee during the Ruth Bader Ginsburg and Stephen Breyer confirmation hearings. “I could imagine someone who is passionately pro-abortion but who still recognizes that there is not a constitutional right to abortion. On the other hand, if you have a constitutional philosophy that invites you to indulge your preferences, anything goes.”
Democrats possess the votes necessary to confirm Sotomayor. Opponents don’t expect to prevail, but they still hope to accomplish two important goals: deepen public awareness regarding the proper role of the courts in the nation’s political democracy and impose future penalties on liberal senators who misrepresent their predilection.
What the president calls “wisdom” and “empathy,” critics label as “judicial activism” — a violation of “originalist” judicial philosophy that asks judges to practice restraint and interpret the Constitution as intended by the founders.
“Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that 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,” contended Wendy Long, counsel for the Judicial Confirmation Network, a coalition of opponents devoted to defending originalist principles and opposing judicial activism.
Judge Robert Bork, whose 1987 nomination to the Supreme Court was defeated, questions whether the American public wants to grapple with the threat posed by judicial activism.
“To introduce empathy into the criteria for a Supreme Court justice is to disregard the Constitution,” said Bork. Obama’s election victory suggests that a “large number of American people don’t want law as much as feel-good politics.”
The Judicial Confirmation Network website contends that Sotomayor “has an extremely high rate of her decisions being reversed, indicating that she is far more of a liberal activist than even the current liberal activist Supreme Court.”
At present, Sotomayor’s decision on Ricci v. DeStefano, a controversial affirmative action case, is before the Supreme Court.
A veteran of the last two Supreme Court confirmation fights, Long’s organization began to outline a battle plan as soon as Obama won the 2008 election. During the presidential campaign, Obama underscored his belief that jurists should issue rulings that reflected their “empathy” for the disadvantaged.
“When Obama uses the word ‘empathy,’ it’s a code word,” Long said. “Instead of judges adopting a restrained, modest view of their role on the bench, as the founders intended, Obama believes judges should bring their own values to the table to make things better. This mission of change is aided by what Obama describes as evolving ‘international norms.’”
A newly familiar presence on the Internet and in television and radio ad campaigns, Long is perhaps the most public face of a nationwide voter education campaign orchestrated by various activist groups.
Some activists are concerned with property rights, rather than abortion or religious freedom. Some operate at the grassroots level far from Capitol Hill. But all are united in their disdain for activist judges “making policy” from the bench.
During confirmation hearings for Chief Justice John Roberts, Whelan, at the Ethics and Public Policy Center, became his defender and effectively challenged partisan distortions of Roberts’ record on the National Review’s popular blog Bench Memos.
But there is one key difference this time around for Whelan and his allies: “With Roberts and Alito, the goal was to knock down distortions. This time it will likely be to generate responsible and accurate criticism of a bad nominee.”
Whelan began posting background information about Obama’s most likely choices before the president actually announced his decision. Once Sotomayor emerged as the nominee, Whelan and others had their arguments at the ready.
“President Obama abided by his dismal and lawless ‘empathy’ standard and, in his selection of Judge Sonia Sotomayor, picked a nominee whom he can count on to indulge her own liberal biases,” contended Whelan in a posting on Bench Memos.
Since the Bork confirmation battle, nominees’ pro- or anti-abortion bona fides have fueled most of the partisan skirmishes. This time, however, conservatives have yet to produce a paper trail that documents, or even hints at, Sotomayor’s views on Roe — or for that matter, same-sex “marriage” and human cloning.
When Pepperdine Law professor Doug Kmiec recently defended Sotomayor as a “moderate,” he cited her ruling in a 2002 case that upheld the Mexico City Policy. But her ruling against the pro-abortion Center for Reproductive Law and Policy followed precedent and did not address the right to privacy, the foundation for Roe.
The Senate is expected to vote on Sotomayor’s nomination before the fall. Conservatives hope to use the long summer months to full advantage. Though some activists have doubts about the Republican National Committee’s willingness to join in their campaign, they trust Sens. Jeff Sessions and Mitch McConnell to lead a vigorous review of the nominee’s credentials in the Senate.
“This has always been a winning issue for Republicans, because they are the party of judicial restraint,” said Gary Marx, who manages the Judicial Confirmation Network’s media campaign and grassroots strategy, which targets liberal senators in conservative states. “President Bush used to call judicial activism ‘legislating from the bench.’ There is a huge supermajority of Americans who get that, and we are going to capitalize on it.”
Joan Frawley Desmond writes
from Chevy Chase, Maryland.