The Judicial Activism Debate

To clear the air a bit, I’ve come out in defense of Sonia Sotomayor in previous posts. I don’t consider this to be a matter of ideological preference, but of presidential deference. I was similarly annoyed by the Samuel Alito hearings, and think then-Sen. Obama was wrong in opposing his confirmation (and John Roberts’). To me, if a nominee is qualified, doesn’t have any glaring character flaws and wouldn’t be considered radical by any reasonable onlooker, they should be confirmed, and unanimously.

But probably the bigger reason I came to her defense is this: I got swept up in a flawed argument, perpetuated by a wholly inept media. And this, of course is the judicial activism debate.

What makes someone activist or a strict constructionist? In common parlance, a strict constructionist (read: conservative) judge should be one that adheres to the Constitution to the letter, and doesn’t read too much into interpretations of intent. A judicial activist (read: liberal) is one who advocates interpreting how the Constitution’s wording fits with contemporary values. Activists are often thought of as using broader interpretations to create policy; see: Roe v. Wade, the use of the Interstate Commerce Clause, Miranda rights, etc.

The problem with debating these labels — which we do each and every time a nomination pops up — is that the debate always devolves into a fruitless argument about interpretation, which neither side seems able to articulate clearly. When politics get involved, the nuances are lost, and we’re faced with black and white terms that rarely, if ever, define black and white viewpoints.

Sotomayor’s New Haven Decision

This’ll be the last Sonia Sotomayor post for a bit, but I wanted to discuss the one thing I actually had some prior knowledge of: the New Haven firefighters case.

Officially Ricci v. DeStefano, the case was first brought against the city of New Haven, Conn. for reverse discrimination against white firefighters.

Here’s a brief synopsis:

New Haven had its firefighters take a test to determine who to promote. Based on the results, none of the black candidates qualified for a promotion. The city then threw out the results, afraid of violating Title VII of the Civil Rights Act. The white and Hispanic firefighters then sued the city, saying that throwing out the test results constituted racial discrimination, because, had they been black, they would have been promoted.

A lot of people have pointed to this as (1) an important indicator of Sotomayor’s feelings on affirmative action policies, and (2) a test for how she stacks up against the current Court. If the Court upholds her decision, the reasoning goes, it means she’s either made the right decision and is therefore qualified, or she fits nicely within the ideological framework of the current Court.

The logic of the latter item has so many holes I’m not even going to bother getting into it. But I would like to address what the case shows us about her feelings on affirmative action policies. Because — while it very well may — I’m not so sure that it necessarily does tell us a whole lot.

Let me say, first, that I think New Haven was wrong in doing what it did. They developed a theoretically racially neutral test to make promotions for them, and then when it didn’t give them the racial balance they wanted, they threw it out. They may as well have just promoted X number from each race to begin with. Ultimately, I think they would have been more justified in doing it that way. That said, I am generally supportive of a lot of affirmative action policies. I think they have been a necessary evil, although a case could be made for their gradual phase out.

But, and here’s where it gets complicated, Sotomayor and the other judges who upheld this decision could very well agree with me that this situation stinks of unfairness. Their job though, isn’t to say what is or isn’t fair, it’s to uphold the law as written.

The Politics of a Supreme Court Nomination

As much as people like to say that the Supreme Court is “above politics,” it really isn’t. Especially in the nominating process.

And make no mistake about it, regardless of her qualifications, Sonia Sotomayor was the politically correct pick, and I use that not in the pejorative, “political correctness” sense, but in the literal sense. President Obama made a really smart choice, politically.

Sotomayor’s a woman. Appease the Hillary voters, check.

Sotomayor has very little in the way of an abortion paper trail. (For those who don’t like clicking my links, which, judging by my blog stats, is all of you, she has only voted three times on abortion-related cases, and none of them constituted even remote challenges to Roe v. Wade. In all three, she voted with the pro-life side, although she herself is pro-choice.) Avoid turning the nomination into an abortion rights debate, check.

Sotomayor is Hispanic. And therein lies the true brilliance of the pick.

Republicans don’t want to alienate Hispanics, who, as a group, are largely thought of as up for grabs. Filibustering, or even significantly stalling Sotomayor’s confirmation, all things being equal, could certainly do just that amongst an Hispanic electorate already a bit wary of Republican immigration policy.

Pick someone Republicans are likely to confirm, while still appealing to the liberal base? Checkmate.

A smart pick, at least on paper. We’ll see how well the administration did its homework vetting her, but Sotomayor has just about everything working in her favor. Including seven Republican senators who already confirmed her once, to her current post on an appeals court.

Sotomayor and Diversity

Obama’s first Supreme Court pick is in: Sonia Sotomayor, a federal appeals judge with a Puerto Rican background.

Those who have been following the speculation leading up to this pick at all have probably heard the name before. Popular wisdom suggested the president would pick a woman, preferably a minority one.

A few weeks ago, Stuart Taylor Jr. at the National Journal, via WSJ.com, offered his take on the “perfect pick:”

What Obama needs, in short, is an intellectually stellar, not-too-old, Hispanic woman lawyer with empathy for the powerless; views on social issues that are predictably liberal but not so activist as to inflame the Right; views on presidential war powers that are predictably deferential but not so much so as to inflame the Left; broad real-world experience; and, of course, rapport with Obama. No such human being exists, I suspect.

Well, we’ll hear quite a bit more about her level of judicial activism in the coming weeks, I’m sure, but one thing we can be sure of is she’s both Hispanic and a woman. And the fact that we’re using those demographic characteristics as criteria begs for comment.

First, a fact: President Obama was going to nominate a woman. Period. All four of his finalists were women, and it’s no coincidence he picked the Hispanic one. So, a question. Is that OK?