Sonia Sotomayor — VOICES for REASON

There was never any doubt that the Lochner litmus test would certify Sonia Sotomayor as a Supreme Court nominee acceptable to the Senate. As I noted in my Objective Standard article, “Justice Holmes and the Empty Constitution,” the 1905 case of Lochner v. New York (which struck down a maximum hours law for bakers) furnishes a tool for discerning a judge’s fundamental view of the Constitution:

• Is the Constitution a document of liberty, designed (perhaps with some errors) to preserve individual rights against government power? If a judge thinks so, then he or she is likely to regard the Lochner Court’s decision as a proper result (albeit perhaps reached by a debatable analysis).

• Or is the Constitution an empty vessel, devoid of any principles protecting the individual against the state? If that is a judge’s view then he or she will join the almost universal chorus of legal professionals who believe Lochner was wrongly decided.

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“Sotomayor Emphasizes Objectivity”—that was the headline in a recent Washington Post. It was a line worthy of the satirical newspaper known as The Onion, which deals routinely in turning the tables for humor’s sake, inverting truth and fiction. And the newly objective Sonia Sotomayor is a pure work of fiction.

During her hearings, Sotomayor said all the right things. She told the committee that her judicial philosophy is “fidelity to the law.” She told Senator Jon Kyl that the “job of the judge is to apply the law” and “it’s not the heart that compels conclusions in cases.” She told  him: “We apply law to facts. We don’t apply feelings to facts….” And she passed off her famous “wise Latina” remark as a “rhetorical flourish” meant to inspire other minorities, not to express her philosophy of judging.

Based on this performance, Sotomayor is virtually certain to be confirmed for the Supreme Court. On Tuesday, the Judiciary Committee voted 13-6 to submit her nomination to the full Senate. But how are the senators supposed to square her recent professions of judicial objectivity with her public paeans to the opposite view?

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On the eve of Supreme Court confirmation hearings for Judge Sonia Sotomayor, Politico.com was reporting that “Republicans have yet to uncover a smoking gun in Sotomayor’s past, and her confirmation is seen by many as a fait accompli.”

This says a lot about the Senate’s inability (on both sides of the aisle) to recognize a smoking gun when they see it.

In previous posts, I’ve discussed the oft-quoted public speech in which she rhapsodized about “how wonderful and magical it is to have a Latina soul.” In that speech, which she later authorized to be reprinted as a law review article, Sotomayor publicly declared that judicial impartiality is just a pipe dream, that judges can’t be objective because “[p]ersonal experiences affect the facts that judges choose to see,” and as a result “‘there is no objective stance but only a series of perspectives.’”

This speech is not just a smoking gun—it’s an atomic blast meant to obliterate the rule of law. Any senator of either party who cannot see the implications of Sotomayor’s views is intellectually unequipped to perform the kind of searching review the Founders intended when they required advice and consent of the Senate for Supreme Court nominations.

Those following the debate over Judge Sonia Sotomayor’s nomination to the Supreme Court may be interested in my article, recently published online free of charge, in The Objective Standard.

In that essay, “Justice Holmes and the Empty Constitution,” I focus on the constitutional theories of Justice Oliver Wendell Holmes, Jr., as reflected in a single dissenting opinion written in 1905 in the case of Lochner v. New York. Although the details of the case are long forgotten (it involved a law setting maximum hours for bakeshop workers), the various Justices’ opinions on constitutional interpretation have had lasting impact.

Holmes’s central point was that the Constitution does not embody any fundamental principle defining the relationship between man and the state—a point that would come as news to the Founding Fathers, who expressly declared their intention to form a government that would protect individual rights against the state. In Holmes’s view, it’s not a document for preserving liberty or implementing any political view at all. Rather, it’s an empty vessel into which society pours its ever-shifting, subjective opinions of what conduct should be permitted and what should be banned.

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If confirmed by the Senate, Judge Sonia Sotomayor will have to take the oath of office that every Supreme Court justice is required to recite. Pursuant to Title 28, Chapter I, Part 453 of the United States Code, Judge Sotomayor will be expected to “solemnly swear (or affirm)” that she will “faithfully and impartially discharge and perform all the duties incumbent upon me” as a Supreme Court justice under the Constitution and laws of the United States. (I added the boldface to that quotation.)

But Judge Sotomayor cannot honestly recite this oath. Why? Because she is on record as believing that judicial impartiality is an impossible dream. “. . . [O]ur experiences as women and people of color affect our decisions,” she said in a 2001 speech. “The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.”

So, will Sotomayor cross her fingers when taking the oath of office, in an attempt to nullify her rank hypocrisy? All superstitious nonsense aside, a judge who declares herself helpless to resist the influences of gender, upbringing, and ethnic heritage when judging cases does not deserve to be elevated to the Supreme Court.

On the G. Gordon Liddy Show recently, I discussed the nomination of Judge Sonia Sotomayor to the Supreme Court. I made the case that she is unqualified for the job—or, more precisely, that she has disqualified herself for a job that requires objectivity and impartiality. Sotomayor has not only declared herself helpless to resist the emotional promptings of her “Latina soul” when adjudicating cases, but she believes that the subterranean influences from her Hispanic female experience will more often than not lead her to a “better conclusion than a white male who hasn’t lived that life.”

With Sotomayor, it’s all about her upbringing, her life story. Her “Latina identity” is a bubbling brew of internal influences—race, gender, religion, and who knows what else—whose swirling emotional fumes permeate the courtroom of her mind. Do you expect her to tell you in words how those influences will affect her judging next week, or next year? Don’t fool yourself. How can she tell you what she herself doesn’t know?

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Campaign finance restrictions are the most egregious violation of Americans’ right to free speech today. By capping contributions to political candidates, and even outlawing certain kinds of political ads close to Election Day, these restrictions place political speech under political control. So it’s disturbing to learn that Obama’s Supreme Court nominee, Sonia Sotomayor, is on record supporting such restrictions. From the New York Times:

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Judge Sonia Sotomayor, recently nominated for the Supreme Court seat being vacated by the retiring Justice David Souter, is unqualified to become a member of the Court. Why? Because her judicial philosophy explicitly rejects objectivity and impartiality.

In a 2001 speech titled “A Latina Judge’s Voice,” she declared that “the aspiration to impartiality is just that–it’s an aspiration because it denies the fact” that “our experiences as women and people of color affect our decisions.” Elsewhere in the speech, she noted that judges are typically unable to “transcend … personal sympathies and prejudices” and that “gender and national origins may and will make a difference in our judging.” “There is no objective stance but only a series of perspectives,” Sotomayor said. Read the rest of this entry »