Monday, July 13, 2009

Sotomayor and the forgotten Constitution

The nomination of Judge Sotomayor now moves to the Senate, where the Kabuki dance of the confirmation hearings is taking place this week. Senators make speeches with questions marks at the end, and the show-prepped self-described "wise Latina" will respond by saying as much nothing as possible.

Let me remind the good Senators on both sides what this confirmation should be about: The Constitution. Senators, Presidents, and Supreme Court Justices all take an oath of office to uphold the Constitution. To uphold the Constitution must have some real significance, or it would not be core part of the oath of office. In monarchies and despotisms, fealty was to the King or leader, but in our Constitutional Republic, we expect fealty from public servants to the laws and the Constitution?

What should 'uphold the Constitution' mean to the Judges? Like a gothic arch that is architected to make the free space of a cathedral, the architecture of our Republican form of government and legal system is the structure to support our freed and civil society. It consists of a division of powers between branches of Government; it includes the concept of limited Government - that Government only has powers granted by the people to it; it includes Federalism, and our Bill of Rights. The foundation that underpins our political order and civil society is the concept that we are ruled as a nation of laws, not men. Presidents must execute the laws, and not merely what they wish; Judges must be bound to interpret the law as it is written, not as they would wish it. It is left to political bodies to make the laws. The Rule of Law and the Constitution can only be upheld if it has substance and a grounded certainty, and if Judges themselves share this understanding of the architecture of our Republic and abide by this Constitutional and legal scheme.

This is all good civics, but how does Obama's nomination play into this? The fact that it doesn't is the point. The Sotomayor nomination was partly an ideological pick ("empathy" as a code word for liberal judicial activist) and partly an identity politics pick (Obama had no white males in his 'shortlist' and wanted a minority on SCOTUS). Where in Obama's nomination was consideration given to the question: Does she adhere to the laws and the Constitution as they are written? Does she faithfully interpret the laws, without injecting personal bias or consideration?

We sadly know the answer. President Obama has made it his intent to only nominate Judges whose view of their role is inherently corrupted, defective and wrong. Sotomayor wants Judges to change laws not just interpret them. Sotomayor reached an unwise and unwarranted decision in Ricci, that the Supreme Court overruled. Here ruling was Prejudiced. She doesn't recognize Second Amendment Rights that are clearly written in the Consitution, and likewise appears hostile to freedom of political speech in campaigns.

In fact, Obama's fatal flaw is that he was and is specifically seeking out, via his 'empathy' standard, Judges who would bend the law to reach the 'right' conclusion. This view of the law has corrupted the bench, put courts on the path towards judicial activist overreach and even tyranny, and undermined the rule of law. It has also, in this era of "Borking", led to politicization of the judicial nomination process. The true primary role of Judges has been relegated by liberals who reject this view of the Judge's proper role, to an "ism" - "Originalism" and "judicial conservatism", and even the perverse view of calling it 'activism' if someone who upholds a traditional view of judges as interpreters of the laws tries to overturn bad judicial rulings not based on it.

Basic civics-level understanding of what Judges should and should not do is being ignored. Liberals since the time when FDR attempted to pack the Supreme Court in an act of political bullying, have seen the courts in a dangerous and new light - as an avenue for political advancement. In the hands of groups like the ACLU and gay activists, courts have made political decisions that elected bodies were unwilling to make; those actions invariably have coarsened politics and deprive Americans of both liberty and democratic choice.

The classic example of such Judicial activist overreach has been Roe v Wade, which used oxymoronic construct of 'substantive due process', misread the 14th amendment and Constitution, denied rights to unborn, and cast a shadow on abortion policy for a generation by trumping democratic local and state choice on matter. It's a decision so obviously wrongly reasoned that even legal expert liberals like Alan Dershowitz acknowledge the decision was flawed.

The Judges serve a role as watchdogs of the law and of due process. When Judges are asked to do two things, their primary mission suffers. A Judge cannot serve an ephemeral "empathy" standard that is code for liberal social policy and serve the law through interpretation at the same time. This is akin to asking the Federal reserve to keep sound money and low unemployment; juicing money to goose employment ends up watering down the value of money. Just as President Obama's economic policies that ask the Federal reserve to do too much are a threat to the soundness of the U.S. dollar, so too his approach to judicial nominations will lead to Judges who undermine the rule of law and the Constitution.

The currency of the Rule of Law weakens when Judges are asked to do too much. While Senator Cornyn asks many great questions, the one question that needs to be answered is: "Judges take an oath to uphold the laws and the Constitution. Will you keep your oath, above and beyond all other considerations, as your sole, primary, and unwavering objective?"

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