10 June 2009

Supreme Court: Sotomayor is the wrong type of activist

The Objectivist
Sonia Sotomayor: The Wrong Type of Activist
Dunkirk-Fredonia Observer
June 8, 2009

Sonia Sotomayor should be kept off the Supreme Court not because she is a judicial activist but because she is the wrong sort of activist. She is a judge in the Second Circuit (the federal appellate court that covers New York, Connecticut, and Vermont). She is the daughter of Puerto Rican parents and was born and raised in the South Bronx. Her father died when she was nine and was raised by her mother in public housing. She received a full scholarship to attend Princeton, where she graduated summa cum laude with a degree in history (1976), and received a scholarship to attend Yale Law School, where she edited the Yale Law Journal (1979). She served as both an assistant district attorney and a commercial litigator and in 1992 was confirmed as a federal judge before turning forty.

Conservatives, such as former Chief Justice William Rehnquist, often charge that liberal judges are judicial activists. Judicial activists are judges who decide cases in part on the basis of morality. In contrast, conservatives claim that a judge’s job is similar to that of an umpire. Umpires, they claim, should merely call balls and strikes. Judging pitches on the basis of empathy, morality, or anything else is unfair and not the umpire’s job. Similarly, conservatives argue, a judge should apply the rules of the game, in this case the law. Chief Justice Roberts explicitly made this claim during his confirmation hearings.

The conservatives’ picture here is that the different government officials have different roles. A legislator makes the law, a judge interprets it, and an executive administers it. This structure is important because federal judges are not elected and have lifetime tenure on the court. As a result, they are less subject to democratic correction than are the other two branches.

The conservatives argue that judges should not make law (that is, decide cases on the basis of their moral values) for three reasons. First, in so doing, they make the government less democratic because the rules are being set by unelected and unaccountable judges. Second, they act unfairly because people can’t know what the rules are. Instead of a hard-and-fast set of rules that people use to guide their decisions, the rules become whatever the judge says they are and this is unpredictable. Third, a judge who substitutes her values for the rules acts as a legislator and this is not her job.

This picture of the law is mistaken. The law is not a collection of hard-and-fast rules. Even if the law did consist solely of rules, and this is doubtful, there can be issues for which the rules don’t apply or conflict. For example, the Constitution does not have a rule as to whether a state may withdraw from the United States, as the country discovered in period leading up to the Civil War. Also, the Equal Protection Clause arguably conflicts with the requirement that each State, no matter how small, gets the same number of Senators. In addition, statutory language can be ambiguous (admitting several different interpretations) or vague (not having clear boundaries). For example, it is not clear that there is a clear boundary separating reasonable and unreasonable searches and seizures. Alternatively, there might be a clear boundary but no value-free way to locate it. To handle gaps, conflicts, ambiguity, or vagueness, judges have to use moral values. Hence all judges are judicial activists.

If judges emphasize the values relating to fair notice to citizens, then they make the law more rule-like. Judges who emphasize fair notice emphasize factors such as the plain meaning of the statutory language, how the different statutory provisions relate to one another, and, where it is clear, original intent. Such an approach makes statutory language work similar to how our conversational language works in our daily lives. In contrast, judges that emphasize their life experiences, emotions like sympathy and empathy, or poorly defined notions like social justice and equality, do the opposite. They make the law less rule-like.

Sotomayor and President Obama, when nominating her, emphasized her life experiences. In a speech at the Berkeley Law School, she focused on the need for judges to understand the values of needs of people from different groups and made it clear that being a Latina judge was an advantage in doing so. She said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Elsewhere, she said “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” She also emphasizes the legislative aspect of judges, stating that “[a] court of appeals is where policy is made.”

Because values are a part of a judge’s toolbox, Sotomayor’s values are also relevant. She is a race warrior. Pat Buchanan points out that at Princeton, she agitated for more Hispanic professors. For example, she headed a group, Accion Puertorriquena, that filed a complaint with the federal government claiming that Princeton had not hired enough Hispanic professors. At Yale, Buchanan points out, she co-chaired a group that demanded the hiring of more Latino professors and administrators. She also filed a complaint against a law firm, when one of its members suggested that she was admitted to the law school on the basis of affirmative action. As a side note, while there is some evidence that Sotomayor is not an affirmative-action baby, the data suggests that the majority of black and Hispanic students at elite law schools would not have been admitted but for these programs and hence the employer’s concern was justified on statistical grounds.

From 1980 to 1992, she served on the board of directors for the Puerto Rican Legal Defense and Education Fund, a Puerto Rican special interest group. Others make her implicit ethnic claim in stark terms. New York Senator, and world-class demagogue, Charles Schumer asserted that “It’s long overdue that a Latino sit on the United States Supreme Court.” To see the problem, imagine that Jews and Asians successfully made similar demands in the context of the NFL and NBA and consider what would happen to the caliber of play and shared sense of purpose among teammates. Now imagine a similar result in the courtroom.

The role of a judge is to interpret the law, although doing so requires judges consider moral values. In some sense, then, all judges are judicial activists. However, by emphasizing some values (for example, life experiences and tribal loyalty) over others (for example, fair notice), a judge does her job less well. There is reason to believe Sonia Sotomayor will do her job less well.

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