President Obama wants Second Circuit Judge Sonia Sotomayor to fill Justice David Souter’s seat on the Supreme Court. But her nomination paints a grim picture of the Supreme Court’s future for those who believe the law should be interpreted according to its original meaning.

Obama says that an important quality in a nominee is the recognition of the limits of the judicial role. Thus judges should “interpret, not make law” and approach decisions with a “commitment to impartial justice.” With these words, it’s curious he’d select a nominee who disagrees.

Judge Sotomayor has made several public statements denouncing -- and even lightly mocking -- the idea that courts should be impartial and shouldn’t engage in policymaking. During a Duke University panel discussion in 2005, Sotomayor stated: “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.”

She flippantly brushed off this statement, to laughter from the audience. “And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know…” She did not go on to clarify what she apparently did mean, but the words speak for themselves.

This is not the first time she has publicly expressed bold views on a judge’s role. In a 2001speech at Berkeley School of Law she advanced the idea legal interpretations are inevitably and unavoidably influenced by one’s own experience and cultural background, and that “impartiality” is just an “aspiration.” She ponders: “I wonder whether achieving that goal [of impartiality] is possible in all or even in most cases.” So much for blind justice.

In the same speech, she was even so bold as to assert her “hope” that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." As Stuart Taylor has aptly noted, “Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.” During her hearings, senators should demand an explanation for her radical statements of ethnic superiority.


Deborah O'Malley

Deborah O’Malley is a Research Associate in the Center for Legal and Judicial Studies at The Heritage Foundation. Follow Heritage's continuing coverage of the Elena Kagan nomination.
 

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