Supreme Court — 2/3 — VOICES for REASONVOICES 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.