Supreme Court — 3/3 — VOICES for REASONVOICES for REASON

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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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 »