Well, it’s official. On August 8, Judge Sonia Sotomayor was sworn in as Associate Justice of the United States Supreme Court, filling the seat left open by the unexpected retirement of Justice David Souter. Like it or not, she will be helping decide cases that will effect the lives of all Americans for the rest of her life (or at least until she decides it’s time to retire). The fact that she leans pretty far to the left ideologically doesn’t really bother me. After all, she replaced Souter, a man who was quite liberal himself. And as President, Mr. Obama certainly had the prerogative to nominate a replacement who thinks along the same ideological lines as he does.
But Sotomayor’s nomination and confirmation are quite troubling nonetheless, not for ideological reasons, but for a reason which I believe to be much more important…
Our federal government was intentionally set up by the founding fathers in such a way that absolute power could never be vested in a single entity. Instead, they developed and implemented a system of checks and balances that equally divides the power to govern among three separate, yet complimentary branches: The Executive Branch (the President and his staff), the Legislative Branch (the two houses of Congress), and the Judicial Branch (The Supreme Court).
These three branches of government each have distinct powers and limitations as set forth in the United States Constitution. The Congress has the power to introduce “bills” and then vote to either pass or defeat them, after which the President can either sign the bills which passed into law, or choose to veto them. If a passed bill is vetoed by the President, the Congress then has the right to vote to overturn the veto and make the bill become law anyway.
The Supreme Court only steps into the picture if there is a legal challenge to the constitutionality of a law that has already been passed. If the Court agrees to hear the case, the justices will listen to arguments both for and against the constitutional legitimacy of the law, then vote to decide whether the law should stand, be overturned outright, or sent back to the Federal Court of Appeals that made the previous ruling with very strict instructions for the lower court to follow when reconsidering the case.
The nine justices of the Supreme Court are Constitutionally and morally bound to base their decisions solely on their honest legal opinions concerning the Constitutionality of the law in question. Ideally, a justice’s personal political beliefs (and even his/her personal opinion as to whether a law is “right” or “wrong”) should have no bearing on his/her decision. It is the responsibility of each justice to base his/her vote on one criterion only: In his/her honest legal opinion, is the law in question in accordance with the U.S. Constitution and the original intent of the founding fathers when the pertinent article was written? If so, the justice is Constitutionally and morally bound to vote to affirm the law. If not, he/she has the same obligation to vote to strike it down. Whether the justice feels that the law is “right” or “wrong” should have no bearing whatsoever on his/her decision.
Of course Supreme Court Justices are human beings with their own set of inherent biases and beliefs, and there will surely be times when those biases and beliefs will inadvertently affect a justice’s decision on a case. But we should expect and demand that each and every justice try to the best of his/her ability to vote strictly based upon the constitutionality of the law. Therein lies the issue that I and many others have with the nomination and confirmation of Justice Sotomayor to replace Justice Souter.
Before President Obama even announced his choice to fill Souter’s seat, he explicitly told the American people that he planned to nominate someone who had “empathy”. That was red flag number one because empathy has no valid role whatsoever in the decision-making process of a Supreme Court Justice. Red flag number two came when it was revealed that nominee Sotomayor had said in the past (on tape no less) that the Federal Appeals Courts are where policy is made. That statement alone should send chills down the spine of every American. But it got even worse when it was revealed that during another taped interview she said “I 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.” Now that one is REALLY scary!
Recognizing that legislators and Presidents are human (and therefore subject to making mistakes), the founding fathers put the Supreme Court in place as a final safeguard against assaults (unintentional or otherwise) against the Constitution and all the rights and responsibilities spelled out within it. When a Supreme Court Justice willingly oversteps the bounds placed upon him/her by the very Constitution that he/she has taken an oath to defend, the future of our democratic republic comes into serious doubt. And as a former Professor of Constitutional Law at one of the nation’s most prestigious universities, President Obama should know that better than the rest of us.