While most analysts see Sonia Sotomayor’s nomination to the Supreme Court sailing smoothly ahead, beneath the waters lurk troubles not unlike those which faced another nominee (Lani Guinier) by the last Democratic President, Bill Clinton.
Although the offices they were nominated to were different – Sotomayor for the Supreme Court, Guinier for the office of Assistant Attorney General for Civil Rights – the similarities involving the two nominees are quite striking.
Both New Yorkers, they were nominated in the first year of the President’s term. Both faced a Senate controlled by Democrats, both were highly regarded lawyers with impressive academic credentials – both Yale law graduates. At Yale each publicly criticized the law school over its hiring policies regarding blacks (Guinier) and Latinos (Sotomayor). Interestingly after finishing at the law school Guinier took a stint with the NAACP Legal Defense and Educational Fund and Sotomayor led the Puerto Rican Legal Defense and Education Fund.
Left-wing legal fetishism seems to play a key role in the lives of both women. And herein lies the challenge for Sotomayor. Just as Guinier’s novel legal proclivities led to her nomination’s collapse, Sotomayor could find herself in the same type of trouble.
Here’s a refresher. In a piece dubbed by the Wall Street Journal “Clinton’s Quota Queen” Guinier’s fairly radical views about race were first exposed by Clint Bolick. In her speeches and writings Guinier had evinced what many came to see as a very pronounced use of race as a proxy for assessing constitutional rights and policy goals. As Clint Bolick noted, Guinier had identified “fundamental flaws in our democracy” which in order to be overcome required that “certain social goods – health care, day care, job training, housing – must be recognized as basic entitlements and that when it comes to equality in the U.S. it should be measured by “a result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal.” This vision threatened the very constitutional make up of the United States affecting redistricting, the separation of powers and even our form of representative government.
These writings once public were too much for Clinton to stomach. Even with a 57 seat majority in the United States Senate President Clinton didn’t attempt to go forward with Guinier’s confirmation, instead forcing her to withdraw.
Sotomayor may have problems that are just as politically risky because of her writings and speeches. While much attention has been placed on Sotomayor’s comments that she “would 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” more should be placed on her comments at a Duke University law school function in which she asserted that “the court of appeals is where policy is made.”
It is true that the former comments are indeed troubling and go to the question of whether litigants before her Court can reasonably expect a neutral and dispassionate hearing on the merits of their cases. However the latter comments are even more troubling because policy making is among the least appropriate practices of the judiciary and her comments raise the question as to what policies will be promulgated and for whose benefit and perhaps most importantly if the U.S. Constitution and American law won’t be used, on what will she use instead as the basis for these policymaking decisions?
Her comments at Duke don’t appear to be a passing fancy. According to a piece written for the Suffolk University Law Review then District Judge Sotomayor cites favorably obscure liberal legal philosopher Jerome Frank’s argument that the law should be neither stable nor certain. Frank the founder of the now mostly discredited school of legal realism prominent during the FDR era is promoted the idea that instead of consistent application of the law to a given set of facts, a judge’s ruling might be instead determined by what the judge had for breakfast.
Rather than the traditional view that the law and related rules should be consistent and predictable, she praises the opposite suggesting in the piece that “an unpredictable system of justice is one that serves a productive, civilized but always evolving, society.” This threatens the very core of the notion that we are a nation of laws.
And while the notion that the law needs to have wild swings in order to promote a healthy society is a popular view held by east coast college sociology professors, for a judge sitting on the highest court in the land to hold such a view isn’t just bad form, it is dangerous.
Every American’s rights are premised on the validity of the United States Constitution – not the whims and perceived needs or excesses imposed on them by unelected judges. Additionally, the policy making solutions that renegade judges come up with never ratify the ethos of the American heartland, instead they are often antithetical. It seems the temptation to create law from the bench most often coincides with a philosophical vision that is out of sync with the interests and needs of American electorate. Instead of persuading the public to change its mind on gun control, needle exchanges and gay marriage, the left has flocked to the courts to find judges who will literally invent law in order to obtain policy outcomes that they can never attain in the democratic arena.
This is precisely why the public says that they prefer a limited role for judges. And now with Sotomayor’s poll numbers sinking down to those of failed Supreme Court nominee Harriet Miers, the Obama Administration may find the calm seas beginning to turn into a perfect storm.