The Sotomayor Vote

August 7, 2009 • Commentary
This article appeared in the WashingtonTimes on August 7, 2009.

All Americans should take pride in seeing our first Hispanic Supreme Court justice (not counting Benjamin Cardozo). While this moment should have belonged to Miguel Estrada — who was denied even a vote by an unprecedented Democratic filibuster — we should nevertheless celebrate Sonia Sotomayor’s rise from very humble beginnings to reach the highest court in the land.

Although her selection represents the very worst of racial politics — she is not a leading light of the judiciary and would not have been considered had she not been a Hispanic woman — her career achievements show that the American Dream endures. While in this world it is rare for an underprivileged child from a minority group to attain a modicum of professional success — let alone reach its pinnacle — in America it happens again and again.

What makes the American Dream possible, however, is the rule of law — the idea that the rules of the games are fixed, so people can be secure in their life, liberty and property — which in this country is ultimately guaranteed by the Constitution. The Constitution provides for a very specific government structure, with checks on each branch’s powers designed to maximize liberty and eliminate arbitrary and capricious rule.

To that end, officers of the judicial branch — judges — are to make their decisions irrespective of the race, religion or riches of those who come before them. And judges are to interpret the Constitution as written text.

If they set aside the text and rule based on their own notions of fairness, then they act as unelected legislators or, worse, extra‐​constitutional amenders of our founding document. If they believe that the Constitution is a “living” document that evolves with the times, then we should dispense with the pretense that they’re following words on a page and debate the wisdom of having black‐​robed philosopher‐​kings.

Nominee Judge Sotomayor knew all this, which is why the testimony she gave at her confirmation hearings disclaimed many of her previous speeches and writings, even going so far as to reject President Obama’s “empathy” standard — the idea that a judge applies the law differently when a litigant is sympathetic in some politically correct way.

While she was evasive most of the time — reason enough to vote against her — when she did say something about judicial philosophy, it was often indistinguishable from the words of John Roberts or Samuel Alito (as evidenced by the frustration of left‐​wing bloggers and pundits). And for good reason: In poll after poll, the American people overwhelmingly support a vision of the judicial role as one of enforcing the law as written, not of imposing their own policy preferences or vision of justice.

Kudos from this exercise go to those Republicans whose hard questions and thoughtful statements elevated the discussion of the Constitution beyond mere abstractions, so Americans could better understand the significance of ideological differences over the judicial role, or the use of foreign law in interpreting the Constitution, or property rights, or employment discrimination. In walking away from so many controversial positions, Sonia Sotomayor established a new standard to which all future nominees will at least have to pay lip service.

While confirmation was almost a foregone conclusion from the start because of the Democrats’ strong Senate majority, the Republicans played well the cards they had been dealt. What was important was not that they voted against Judge Sotomayor — though, to borrow Sen. Arlen Specter’s standard from President Clinton’s impeachment trial, the case for her confirmation was “not proven” — but that they provoked, finally, a serious discussion about constitutional interpretation and jurisprudential philosophy.

And so the battle has been joined. It is now up to voters to show how much they care about what judges do and how they do it. We shall see whether their stated preference for jurists who are faithful to the Constitution translates to pressure on those who appoint, advise and consent on judicial nominations. Elections have consequences, and so ultimately only the democratic process will ensure that future justices, be they Latinas or old white men, really are wise.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute