Sotomayor's Right-Wing Judicial Philosophy?
Judge Sonia Sotomayor has apparently never been exposed to the factual (vs. case law) history of the Constitution. In response to a question July 15 on judicial philosophy from Sen. Hatch, she said with no hesitation: "The Constitution creates the rights. It's immutable. The right [sic] that the Constitutions [sic] have created can't be added onto -- neither by congress or -- except by amendment -- or by a court." She went on to explain that, if a specific case arose, the liberty clause of the 14th Amendment could be used to affirm the right at issue, and only that right.
Not only is this factually wrong, but it is the explicit opposite of the intent of virtually all those who wrote the Constitution. In law school (I attended Georgetown), they do not require students to read such legal diversions as the actual journal of the Constitutional Convention, done by James Madison and known as "Madison's Notes." This tome -- nearly 700 pages (Microsoft Word) of the proceedings, day-by-day -- records in detail how the complete Constitution as we now have it was developed.
The Constitution, then and now, contains only two references to rights of any kind (being the right of authors and inventors to their writings and discoveries, and prohibition against suspension of habeas corpus). On September 12, 1787, the completed Constitution was presented to the Convention for formal adoption.
On that day, Col. Mason, a fellow Madison delegate from Virginia, suggested that the Constitution be prefaced with a Bill of Rights. There was brief discussion, followed by a motion to form a committee to draft a Bill of Rights. That motion was unanimously defeated. As presented to the First Congress, then, the Constitution contained no Bill of Rights ... no rights whatsoever beyond copyright/patent rights and habeas corpus.
Judge Sotomayor would hold that therefore, had the Constitution been adopted that day, we would have no rights beyond these. (I would remind the Judge that 14th Amendment was not adopted until 80 years and a Civil War after the Constitutional Convention.)
Indeed, the framers held that the very idea of expressing rights in our Constitution would transform it from a constitution to a decree from a sovereign. In the view of the founders, the people are "endowed by their creator" with rights -- never are we granted rights from a government. The practice of granting rights from the sovereign is precisely why we fought the Revolution.
From the entirety of her testimony, Judge Sotomayor clearly has great respect for impartial jurisprudence and has reliably demonstrated such respect in her nearly two decades on the bench. Nevertheless, her answer above raises fundamental issues. For example, nowhere in the Constitution or original Bill of Rights does the word "marry" appear. According to Judge Sotomayor, therefore, no such inherent right existed prior to the Civil War and the reconstruction Amendments passed later. Ditto the word "work." Ditto a long list of other rights.
In addition to the Convention unanimously rejecting a motion to include a Bill of Rights in the Constitution, when the issue did arise in the First Congress, the eventual inclusion of what we now know as the Bill of Rights was a political, not philosophic decision. Several states in Congress indicated that their legislatures would reject the Constitution unless additional restrictions were placed on the federal government. Many proposals were made and finally the substance of the Bill of Rights -- the first eight (not ten) Amendments -- was agreed to.
Then, out of abundant concern that far into the future some legislator or judge might erroneously interpret the Bill of Rights as granting rights, as opposed to the actual universal wording of imposing restrictions on the government ("Congress shall make no laws ...."), the 9th and 10th Amendments were added:
Article IX
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Article X
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
(Emphasis mine.)
Other rights and powers? What other rights and powers?
Unmistakably, in both the Constitutional Convention and in the First Congress, the framers repeatedly wanted their peers and their posterity to know that the inherent, creator-given rights of the people were not expressed in the Constitution. The Constitution, they felt passionately, was never to be interpreted as a grant of rights.
The avant-garde view of Constitutional jurisprudence, espoused by the far right, is that when matters not expressed in or reasonably derived from the words of the Constitution are at issue, Congress, not the courts, should resolve the issue. For instance, if you want the right to tie your shoes, the right to gay marriage, or anything in between, Congress and 38 state legislatures must pass a Constitutional Amendment. Congress is weak and corrupt, so the legal theory goes, and the Supreme Court can help strengthen it by refusing to incorporate any additional, unenumerated rights into the Constitution.
By this theory, Plessy v. Ferguson (separate but equal) would still stand, and there would be no Roe v. Wade. By her own words, this is what we will have with Justice Sotomayor. By her nomination, this is what we have unintentionally obtained with President Obama.
This line of primarily white "first responders" makes for a vivid non-verbal argument that Sonia is stepping up to the high court on the backs of these white heroes.
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HuffPost's Pick
Does Judge Sotomayor accept that the Bill of Rights, the first ten amendments to the Constitution of the United States, can and must be enforced on behalf of the people by either the States, the most desirable case, or if the States refuse to do so, by the Federal government against the States on behalf of the people. This means all ten amendments, not just some of them.
While I believe the legal arguments presented in this post are strong, I have to agree with dancucich: these hearings are not a forum for the elucidation of judicial philosophy.
This is a show trial, with the emphasis on show. It was only the invention of television that gave rise to these "confirmation hearings", such as they are.
I do not believe any honest legal philosophies are expounded upon in these hearings - whether it be John Roberts with his antiseptic and anodyne testimony or it be Sonia Sotomayor and her endless enthusiastic displays of support for "stare decisis".
We have returned to an age in which the public is not given an actual presentation of whom the nominee is, what their beliefs are and what they are likely to do as a Justice of the Supreme Court. Perhaps there was a short period in which that actually did take place, but those days ended with Judge Bork.
In this brave new world of ours, we have naught but our faith in the individual we elect as President to make a wise selection. In the end, isn't that what we elected Barack Obama to do?
See Mark Dorlester's Profile
I generallty agree. The reason I wrote the article is that on the subject of judicial philosophy, Judge Sotomayor did not evade, hide, obfuscate, or otherwise shield her views. She certainly had the opportunity to do so - she could have, for example, followed her statement of immutability with a hedge on pre-existing rights rooted in our customs and traditions. She did not. She expressed exactly the view of Roberts, Alito, Scalia, and Thomas. In today's New York Times, http://www.nytimes.com/2009/07/17/us/politics/17assess.html?_r=1&nl=pol&emc=pola1
you will find a quote from ultra-conservative Senator Lindsey Graham directly referring to the observation in my article:
-----
She distanced herself from President Obama’s claim that judicial “empathy” plays a role in deciding tough cases. She rejected the idea that the Constitution is a living document, saying instead that it was “immutable” except through amendment.
“I think I’m listening to Judge Roberts,” said Senator Lindsey Graham, Republican of South Carolina. “I’m, you know, listening to a strict constructionist here.”:
-----
This might have been just theater. In my opinion, it was not.
onepotato wrote:
I personally believe that the "Radical Republicans" who gave us the Thirteenth, Fourteenth and Fifteenth Amendments intended to create a nation in which the People's rights were in effect nationalized while everyday local and state government administration remained federated
==========Raul Berger wrote something very similar to that in his book, "Government by Judiciary: The Transformation of the Fourteenth Amendment."
(ISBN 0-674-35795-7) Its very worthwhile reading. ====
HenryClay wrote:
But if Sotomayor is truly a right-wing justice-in-waiting, who will move the court to the right, why will most conservative senators vote against her confirmation???
===Henry, I guess my point is that her testimony before the committee
was about as predictive of what kind of justice she will be as David Souter's (and Chief Justice Robert's) testimony was predictive of what kind of Justices they would become. They were totally
differenent than what we expected based on their testimony at their respective confirmation hearings.
I do not believe Judge Sotomayor's decisions thus far have been those of a right wing judge, and I think the fact that the right leaning Senators will for the most part be voting against her suggests they agree with me-on that issue. Of course what they would call progressive differs from my definition.
Still, I believe she will be a moderately progresive judge, who at least is aware and concerned about the real life consequences of her decisions. I hope and honestly beieve she will be a pretty good justice. I think her relatively modest net worth, indicates that her main focus in life has not been pecuniary gain-unlike the very wealthy Justices like Scalia and Roberts.I am pleased with this nomination and hope she will be confirmed.
"why will most conservative senators vote against her confirmation?"
Because, as someone else stated, this is all theatre. She's going to get through with or without Republican votes. But, by being more absurd in their argument and making the right racist attacks, some Senators will be more appealing to their base which want to see anything and everything done to keep her from getting the seat. Thus, it's all a song and dance.
Truth be told, I'm really not excited about her as a pick at all. She's gotten some decisions very wrong as a result of getting distracted by procedure and precedent in my opinion. Then again, it seems most judges do. However, I would have liked to see a replacement closer to Brennan in philosophy and history than Souter. She's more than qualified to take the seat. She's just not my ideal choice.
Here's a link to an interesting article referring to the "Privileges and Immunities" clause as being intended as the "Gem of the Constitution".
CAC Puts The Gem to Work, Files Brief Calling for the Restoration of the Privileges or Immunities Clause
http://theusconstitution.org/blog.history/?p=492
I personally believe that the "Radical Republicans" who gave us the Thirteenth, Fourteenth and Fifteenth Amendments intended to create a nation in which the People's rights were in effect nationalized while everyday local and state government administration remained federated.
HenryClay wrote:
But if Sotomayor is truly a right-wing justice-in-waiting, who will move the court to the right, why will most conservative senators vote against her confirmation???
=====Henry, I read a very shrill posting on a legal blog from a livid Georgetown Law professor. (Seidman?) who was beside himself because Judge Sotomayor did not stand up for liberalism and judicial activism, and foolishly scuttle her nomination by informing the nation that she and all appellate judges do make policy and law.
confirmation hearings are not a freindly forum conducted by non-partisan highly civic minded individuals just looking for adequate credentials , good character, and maybe if theyre lucky, a learned and scintillating legal pearl from the nominee.
No! they are looking for a frontpage controversy, that will draw flies and reporters in equal parts sufficient to derail the nominee. So they ask loaded questions on emotional issues which if the judge obliges and takes a swipe at-she's at risk of getting stuck in a morass, which will bring her nomination down to an intellectual food fight-and possibly derail her nomination.
But never mind common sense; this livid, self righteous, ivory tower academic apparently felt betrayed because the judge did what every nominee has done since Robert Bork shot his nomination in the head, with ill advised candor: She danced around the senators' dumb questions like Fred Astaire around a floor of clubfoots.
the confirmation hearings are no place to spill your guts
See Mark Dorlester's Profile
Well, whereas I generally agree, it is not at all true that all nominees since Bork have answered key questions with bland nonsense. Judge Souter was asked about unenumerated rights and gave a forthright and detailed answer re his understanding of Constitutional Law. Ginsburg was also forthright in front of a Republican majority Senate and had no problem. In the contemporary, setting, I have no problem with a watered-down, noninflammatory answer. But the answer she gave was unnecessarily "strict constructionist." She could have given a similar answer and then added that there are many unquestioned rights - deeply rooted in our customs and traditions - never mentioned in the Constitution of Amendments. If she wanted to pander, she could have given the example of the right of a married couple to have children.
But no, she went out of her way to give an extremely right-wing answer and then stop. If she in fact has a substantively different view, she was lying, not dodging.
Mr Dorlester,
I think that you are being harsh on Judge Sotomayor, who was simply eluding
a snare set by republicans on the committee.
Had she tried to defend the very obvious (that judges do make policy), she would not be on her way to confirmation as we speak. Instead, her nomination wold be in trouble, and the President would be in a place where the only the only future nominees he could realistically expect to see confirmed
would be Anthony Kennedy clones .
It is not Judge Sotomayor who is responsibe for the growing public acceptance
of Justice Roberts' "baseball umpire" jurisprudence. Nor would it have been wise to use the hearings
as a forum for public re-education.
it is the passivity and silence of academic lawyers who have failed to educate the public to the fact that judges do indeed make policy.
I think that you should keep driving
home the simpler facts such as: every time the Supreme Court overturns
one of its own past precedents, it is in fact engaging in "judicial activism" and that it's actually good!
I agree the constitution is a living document.
Read Raul Berger's book, "Government by Judiciary: The Transformation of the Fourteenth Amendment.
(ISBN 0-674-35795-7)
If Berger contends that theframers of the 14th amendment, neither foresaw or intended that the 14th ammendment would incorporate the other
amendments. Thus, Brown vs Board would have to be relitigated if todays "originalists" were truly
unadulterated "originalists" as they claim.
But if Sotomayor is truly a right-wing justice-in-waiting, who will move the court to the right, why will most conservative senators vote against her confirmation???
Does the U.S. Constitution/Bill Of Rights use the words "campaign contribution" or "fundraiser" when discussing the right of the people to petition their government?
Does the word "Corporation" appear in the U.S. Constitution?
This may all devolve on whether one interprets the Constitution as being merely the original document sans the Bill of Rights and Amendments, or whether it is ALL of that incorporated together. If so then the 9th & Tenth are intrinsically part of the Constitution, and thus the rights "granted" under the established government are in fact all those "natural rights" that do not need to be enumerated.
However even the 9th might be interpreted with a conservative position. It suggests that the rights are those "retained". This could mean that there were rights, already expressed and used in everyday experience, that pre-existed the Constitutional Convention. "New rights need not apply".
But the l0th suggests that the people and the States could establish new "powers"...provided these were not in conflict with the Constitution or the enumerated rights established t herein through the "Bill of Rights". How the "people" could make imminent that power is not at all clearly laid out.
It should also be pointed out that several of the States had already established their own (but different) "Bills of Rights" or statements of the rights and privileges within their, specific, States. If the "people" held pre-existant "natural rights" then these statements were irrelevant, as rights expressed by one State would not be "grants" but universals.
Questions for judge Sotomayor:
Do you believe that the Bill of Rights in its entirety, the first ten Amendments to our Constitution, is incorporated against the States by the Fourteenth or any other Amendment to the Constitution or by any other binding legal precedent?
Do you accept the finding of the Court in the case of Dred Scott v. Sandford (1857) that the rights of all citizens of the United States include but are not limited to the following, as redacted from the decision of the Court:
"the right to enter every State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, AND TO KEEP AND CARRY ARMS WHEREVER THEY WENT." [emphasis added]
The Court was of course enumerating rights it deemed could be denied to Black Americans. Today those and other rights must be applied equally to all citizens of the United States.
See Mark Dorlester's Profile
I agree that it is a complete mystery why no Democratic senator asked these questions.
As to incorporation, we have not completed all provisions of all Amendments. The question of whether they SHOULD be depends in part upon your view of the national structure. On the one hand, we were created as a FEDERATED republic, meaning that each state retained the right to govern itself as it wished, provided only that the governing power was not specifically delegated to the central government (i.e., treaties, war-making). And so the existence of slavery was just fine for southern states, but the north was governed to the contrary. But we fought a Civil War, and then equal protection was adopted, so we were less federated. But we have never become one country only, politically speaking. I'd be for it. Convince your Representative and Senators. Until then, each citizen has at least 3 citizenships: county or city, state, and federal - and they're each independent.
Dude, My husband attended and played footbal for Bethany (before getting kicked out because he partied too much with his frat borthers) (Go Bisons?) He eventually got his degree from U Md and his law degree from Wash U but still regales me with stories from his Bethany days and some dive called Bubbas. Completely irrelevant on this otherwise very intelligent conversation...but what they hey?
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