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Is Sotomayor an “Activist Judge”?

One of the complaints that conservatives like to throw at judges they don’t like is that they are “activist judges” who “legislate from the bench”. They seem to use it as an all-purpose insult, even when it doesn’t apply. An excellent example of this is Obama’s nominee to the Supreme Court, Sonia Sotomayor.

When conservatives call Sotomayor an “judicial activist” they are simply ignoring the facts. And there are plenty of facts to chose to ignore. SCOTUSblog has an excellent review of Sotomayor’s opinions as an appellate court judge, from which a clear picture emerges of someone who is anything but a judicial activist.

In just one of the examples, a voting rights case in 2006, Sotomayor wrote in her opinion:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. … But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of § 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it.

I have already noted that the case conservatives protest the loudest about, Ricci v. DeStefano, involving reverse discrimination against white firefighters, Sotomayor was clearly following the law. But that doesn’t stop Rush Limbaugh from howling:

[Sotomayor] ruled against the white firefighter – Ricci and other white firefighters – just on the basis that she thought women and minorities should be given a preference because of their skin color and because of the history of discrimination in the past. The law was totally disregarded.

Let’s ignore the fact that this case had nothing to do with women at all. According to PolitiFact, the unanimous “ruling by the three-judge panel makes no mention of giving preferential treatment to women or minorities”. In addition, they state:

The first thing we note is that the opinion cites numerous other cases to back up various points. That alone weakens Limbaugh’s claim that “the law was totally disregarded.”

The opinion itself states that “the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.” In other words, Title VII (a law) specifically prohibits the board against claims of reverse discrimination.

If conservatives don’t like that law, they should work to get it changed, not protest when a judge doesn’t change it for them. It is the height of hypocrisy to call someone an activist judge and then protest loudly when they don’t legislate from the bench.

Jim Morin
© Jim Morin

UPDATE: Here’s an article by Geoffrey Stone (a law professor at the University of Chicago, which is one of the most prestigious and conservative law schools in the country) on the “Hypocrisy of ‘Conservative’ Critics”. Stone makes the point that conservatives who claim that they don’t want activist judges are betrayed by their actions.

What the conservatives commentators really want in a Justice … is not judicial passivism but judicial activism. What they want is not strict construction, but free-wheeling, activist interpretation … which is exactly what they’ve gotten from Justices Rehnquist, Roberts, Scalia, Thomas and Alito. What they want is conservative activism – the aggressive use of judicial power in order to smuggle conservative political views into the interpretation of the Constitution.

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6 Comments

  1. Kevin wrote:

    Does this really surprise anyone? Limbaugh in particular is only after ratings, and if he has to stretch the truth, or out right lie to get better ratings, then he’ll do it. I sometimes wonder if he really believes ANY of the crap he spews, or it’s all just a way to make money for him. Not that that would make what he does any more palatable…

    Saturday, May 30, 2009 at 3:40 pm | Permalink
  2. Richard wrote:

    The possible good piece that this “debate” may bring out is that EVERYONE on earth comes to his or her job with the baggage of their experience.

    If the conservatives don’t think that their experience shapes their values and decisions they’re setting a double standard.

    Each justice has come to the bench with a different set of experiences and those experiences shape the way they interpret the constitution and make decisions.

    If this were not the case they’d all be robots with the same ideas. They are most certainly not and I’m glad of it.

    The great thing about Obama and Sotomayer is that they acknowledge this.

    Anyone who denies it is delusional.

    Sunday, May 31, 2009 at 10:43 am | Permalink
  3. Stef wrote:

    Well I don’t think anyone is saying that people can’t bring their “baggage” or different experiences to their jobs but the problem is that she didn’t say she thought her experiences would help her be a good judge. She said she thought her experience as a latina woman would make her a better judge than white males. “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Chicago Sun Times http://www.suntimes.com/news/politics/obama/1592127,w-sotomayor-hispanic-latina-identity-052609.article
    Let’s put it the other way around. Let’s say someone like Rush Limbaugh was up for supreme court nominee and he said that he thought his experience as a white male would make him a better judge than a black woman, that sounds a little strange doesn’t it? It should be troubling as well that she is a member of a Hispanic only advocacy organization called La Raza or “The Race”. This organization supports group like Mecha (Movimiento Estudiantil Chicano de Aztlan)an organization that calls for the secession of the western United States as a Hispanic-only homeland in their constitution. They see “the Race” as part of an ethnic group that one day will reclaim Aztlan, the mythical birthplace of the Aztecs. In Chicano folklore, Aztlan includes California, Arizona, Nevada, New Mexico and parts of Colorado and Texas. Again I ask, if a white male were up for the same office and was a member of a white only advocacy group called “The Race” and said he believed he would make better decisions as a white male than a hispanic woman that didn’t have the same expereinece of being a white male, would we be looking at this in the same light? Racism is racism no matter what direction it comes from and everyone should be alarmed at her comments.
    The problem is the role of a judge is to interpret the law without prejudce and I question whether she can do that with those kinds of ideas. A juror isn’t even allowed to serve on a jury if they indicate in any way that they believe one race or sex is superior to another. If you can’t serve on a jury with that belief why should you able to be one of the highest judges in the land? This to me is especially troubling since she did say that the court of appeals is where policy is made, watch the video here at youtube, she clearly believes and is serious about what she says until she remembers she’s being recorded. http://www.youtube.com/watch?v=OfC99LrrM2Q
    The role of a judge is to interpret law not make it, that’s the role of congress and to overstep those boundries completely goes against the constitution and the whole reason we have a 3 branch government with checks and balances.

    Monday, June 1, 2009 at 3:24 pm | Permalink
  4. Iron Knee wrote:

    Stef, I think you are falling into the trap of taking a couple of quotes out of context. Have you looked at other things that Sotomayor has done and said? Did you read the review at SCOTUSblog? Have you read this? Have you read the Wikipedia page on La Raza?

    Have you ever said something you regretted later? I think I understand the point that Sotomayor was trying to make in her “Latina woman” quote, but she did not say it as well as she should have. A quote like that does warrant further research to see if there is a pattern, but it isn’t worth condemning her for that one bad quote. Besides, Alito said pretty much the same thing during his confirmation hearings.

    Monday, June 1, 2009 at 3:54 pm | Permalink
  5. Sammy wrote:

    Stef, go to the transcript of the “wise Latina” speech and read the preceding and following paragraphs. It’s called “context”, and once you read what she actually said, and not one isolated sentence, you’ll realize you and the rest of her critics are dead wrong.

    She quoted Sandra Day O’Connor, who once said she hoped a wise woman and a wise man would come to the same conclusions. Sotomayor stated she disagreed with that sentiment and gave examples of “wise men” (justices) who made unwise decisions CONCERNING RACE AND SEX DISCRIMINATION cases. See for yourself HERE: http://berkeley.edu/news/media/releases/2009/05/26_sotomayor.shtml

    Monday, June 1, 2009 at 9:54 pm | Permalink
  6. K!m wrote:

    re: court of appeals is where policy is made

    A US District Court (SDNY) showed its agreement with this statement a few weeks ago in Kravar v. Triangle Services where it overruled recently decided SCOTUS decision, 114 Penn Plaza v. Pyett. Funny how that sometimes happens, right?

    Pyett decision here: http://www.scotuswiki.com/index.php?title=14_Penn_Plaza_LLC_v._Pyett
    Kravar decision ‘overruling’ here: http://www.websupp.org/data/SDNY/1:06-cv-07858-20-SDNY.pdf

    Tuesday, June 2, 2009 at 4:32 pm | Permalink

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