A president’s enduring legacy is often not the legislation passed during his term or the executive orders he signs. Often, it’s the justices he nominates to the Supreme Court. President George H.W. Bush will forever be remembered for nominating Justice David Souter (a liberal) to the bench, despite the fact that Souter’s philosophical ideals turned out to be quite different from the former president’s. His son, President George W. Bush, nominated two conservative justices to the bench, Justice John Roberts and Justice Samuel Alito, whose political ideals will echo Bush’s for years. Now, President Barack Obama has his first opportunity to put his philosophical fingerprint on the highest court in the land. But, unfortunately, his nominee has more than a few skeletons in her closet.
Judge Sonia Sotomayor has a history of controversy deeper than just her famous comments concerning the experiences of Latina women. Sotomayor has had four out of six appealed decisions overturned and has been cited by the Supreme Court as using faulty reasoning to reach one of her decisions in a 2006 case. In addition to these concrete legal issues, Sotomayor has publically expressed her support for judicial activism. “The Court of Appeals is where policy is made,” Sotomayor said at a conference at Duke University Law School in 2005.
But it’s the job of the legislature, not the judicial system, to decide policy. The courts are where laws are tested, not where they’re made. Legal decisions should be based on impartial interpretations of the law. Middle school civics students can tell you activism on the bench should be discouraged. Politics aren’t within the realm of judges, though it would appear that Sotomayor may disagree.
Congress should examine another comment from Sotomayor. “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society,” she said at a symposium at the University of California, Berkeley in 2001. This comment has worrisome implications for those who could be judged on their genetic characteristics.
More importantly, what would we say if a white man echoed sentiments that he should consider race in his decisions? We would be outraged, and rightfully so. When a defendant goes before a court, he or she is owed the neutrality of the judge.
Another area that requires careful examination prior to confirmation is Sotomayor’s record. One case that stands out as troubling is the oft-publicized Ricci v. DeStefano. This New Haven, CT case involved 18 firefighters who passed a city promotions test but were denied their promotion due to the fact that no black firefighters qualified for the promotion. The firefighters, most of whom were white, then sued the city for racial discrimination. Making her decision based on her own liberal tendencies, and possibly with race in mind, Sotomayor ruled in favor of the city, upholding the idea that although the 18 firefighters studied and met the requirements for their promotions, they should be denied due to their ethnicity. Sotomayor should have fought racial preferences — even against white men — instead of engaging in judicial activism that denied these firefighters their rightfully earned positions.
Sotomayor will be subject to mandatory congressional confirmation hearings, though Obama has strongly indicated that he would like to see her confirmation occur by Aug. 7. But Sotomayor isn’t the caliber of judge we have come to expect on the Supreme Court. Judicial activism has no place on the highest court in America. And Sotomayor’s support of it makes her a candidate requiring careful consideration.
Asa Smith is an LSA sophomore.