Scalia, Alito Quotes Blunt Conservative Attacks On Sotomayor

06/28/2009 05:12 am ET | Updated May 25, 2011

What's odd about the body of opposition to Sonia Sotomayor is that it includes so many items that seem to have been previously deemed acceptable for Supreme Court Justices. Take the whole notion of Obama's appointee being a "judicial activist of the first order?" As you may have seen, Supreme Court nominee Sonia Sotomayor once quipped:

The saw is that if you're going into academia, you're going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they're looking for people with court of appeals experience, because it is -- court of appeals is where policy is made. And I know -- and I know this is on tape and I should never say that because we don't make law, I know.

But, as it turns out, Sotomayor needn't worry about talking about how policy is made at the appeals level on videotape. Why, some justices on the Supreme Court have said the same thing and baked it into their judicial decisions. Like, say, noted leftist jurist Antonin Scalia, who, in the majority opinion of 2002 case Republican Party of Minnesota v. White, wrote:

This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.

In footnote 12, Scalia elaborated (emphasis added):

Although Justice [John Paul] Stevens at times appears to agree with Justice [Ruth Bader] Ginsburg's premise that the judiciary is completely separated from the enterprise of representative government, post, at 3 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, post, at 3 ("If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls"); post, at 3, n. 2. Even if the policy making capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, post, at 3, n. 2, then-even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- and low-court candidates alike. In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. Justice Stevens has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e.g., Reves v. Ernst & Young, 494 U.S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U.S. 350, 376--377 (1987) (dissenting opinion).

This all comes courtesy of HuffPost reader Doug Schafer, who is of the opinion that journalists ought to avail themselves of this citation from Scalia whenever the "judges don't make law" canard arises. I agree!

Additionally, Sotomayor's critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process. Who does she think she is? Well, as it turns out, she probably thinks she's being very similar to Justice Sam Alito:

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ... And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position. [...]

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

[WATCH.]

And, in a related way, the criticism over "empathy" fits the same "this-was-once-deemed-okay" mold. My experience teaches me that only robots lack empathy, and that most people value it. Yet, ever since President Barack Obama cited it as a focus of his, in his search for a replacement for Justice David Souter, the whole notion of "empathy" has been treated as an alien thing that threatens the sanctity of court decisions.

That's weird! In July of 1991, "empathy" was one of the major selling points presented at the nomination of Justice Clarence Thomas! As President George H. W. Bush said:

I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He's also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require.

UPDATE: In the interest of fomenting some informed debate, I'd like to bring in the commentary of HuffPost blogger Morgan Warners, who writes:

In his book "Common Law Courts in a Civil Law System," a published version of a lecture series at Princeton and edited by Amy Guttman, [Scalia] argued the importance of preserving law as the democratically enacted will of the people from the assault of judges who apply common-law approaches to statutory and constitutional interpretation.

In that book he was speaking specifically about a distinction between common-law methods, like the ones that the footnote reprinted in your article deals with, and statutory and constitutional law as interpreted by federal courts. It is my understanding that the federal courts do not make common-law decisions because they only hear cases based on statutory or constitutional claims. Common law, on the other hand, is based on custom. In common law cases, state courts have leeway to interpret the common law and "create" it where precedent has heretofore been silent or where, in the judge's opinion, existing law is inapplicable. His point is that taking this approach to statutory or constitutional interpretation is inappropriate--we have a democratic system in place that settled on a Constitution and statutes with specific textual components, and that judges interpreting them should cleave very carefully to them. Otherwise, he argues, judges are usurping the democratic will of the people.

I don't necessarily agree with all aspects of his argument but it is a powerfully made, brilliant one. It is also a pleasure to read, if law and philosophy are your cup of tea. I recommend it. In any case I thought you should know this because I think the characterization in your article does not, pardon the pun, do justice to Justice Scalia. I don't agree with him, but the critics of Sotomayor are not necessarily being hypocrites in their adoration of Scalia while they revile Sotomayor. To them, Sotomayor signals what Scalia is also concerned with: the application of common law techniques, judge-made law, to federal cases where that is inappropriate. Whether they have reason to believe Sotomayor does this is an entirely different matter. I think they were just prone to see whatever scares them most in whoever Obama was going to nominate.

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