In a law review article, Sonia Sotomayor said our society would be straight-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political changes. Instead of interpreting the law in a fair and equal manner, it seems Judge Sotomayor thinks it is not only appropriate, but beneficial to society, for judges to legislate from the bench.
Americas Founding Fathers had a vision for the judicial branch, and it consisted of an impartial court system with judges who interpret, not make, law. They left the legislating function to the elected branch of government Congress. Yet, some judges have used their role on the court to push their own agenda, whether that be on marriage, race, international law, or the second amendment. And Judge Sotomayor is no exception.
Judicial Activism on Race
Sotomayor is known for her now-notorious quote that a “wise Latina woman” could reach a better conclusion than a white man. And while she downplayed her quote in her committee hearing, her past judgments have indicated that she does take race into consideration in determining cases.
Just last month the Supreme Court overturned the decision of Sotomayors Second Circuit panel in Ricci v. DeStefano, a case filed by white and Hispanic firefighters after the city threw out the results of a promotion because the city thought that the successful candidates werent the right race. All nine justices on the Court even liberals like Justice Ginsburg and Justice Stevens rejected the standard that Sotomayor applied in the case.
Even worse, Sotomayor tried to bury the case, releasing a one-paragraph unpublished opinion that only came to light when one of her colleagues (a fellow Clinton appointee) called out her shenanigans. In a case that Sotomayor thought was not important enough to warrant a real opinion, the Supreme Court wrote 89 pages worth of analysis. When questioned by Senator Jeff Sessions (R-AL) in her hearing, she called her one-paragraph opinion a thorough, complete discussion of the issues as presented to the district court.
Judicial Activism on Guns
Despite the clear words of the 2nd amendment and judicial precedent, Sotomayors three-judge panel ruled that the Second Amendment right to bear arms is not a fundamental right and so does not prevent state and local governments from completely banning gun ownership. Even more alarming, her committee hearing reveals a denial of the right to self defense altogether. Here is a line of questioning between Senator Tom Coburn (R-OK) and Sonia Sotomayor:
Coburn: As a citizen of this country, do you believe innately in my ability to have self-defense of myself — personal self-defense? Do I have a right to personal self-defense?
Sotomayor: I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a Constitutional right to self-defense? And I can’t think of one. I could be wrong, but I can’t think of one
Coburn: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?
Sotomayor: I — as I said, I don’t know.
The Proper Role
A proper, constitutionalist judge applies his or her oath to defend the Constitution by applying the law as it is written, and according to its original meaning. To do otherwise is to allow our basic charter to be changed not by the super majority process, but according to the whims of a majority on the Supreme Court. Judge Sotomayor has advocated this kind of innovation in her writings, and has suggested that it is somehow a disservice to the country for judges not to act based upon ethnic or gender prejudices from the bench. To the contrary, it is a disservice to the Constitution, and to the American people.