I Spoke Too Soon.

June 1, 2009 at 8:00 pm (By Amba)

A few posts ago I wrote,

The part of Sotomayor’s remarks that annoys me most isn’t mentioned much:  her *nudge nudge wink wink* tone when she says “Yeah, yeah, I know, we don’t make law, ha ha,” like you and I know better. That’s where she seems to me to give away a weakness for judicial activism.  Her self-correction sounds insincere.  It’s also so brazenly in-groupy and parochial — subtext, “we right-thinking folks all get it.”

Wrong.  It has been noticed.  In a mailing from Human Events (OK, so we’re both wrong that no one else noticed  :) ):

But what no one seems to be pointing out is that Sotomayor was playing to this crowd of Duke University law students and moved them to laughter and as she concluded her statement, she smirked… she actually smirked.

That telling wink-wink-nudge-nudge moment, caught forever on video… her smirk… the laughter. Sotomayor is not just a left-wing activist judge who is willing to occasionally legislate from the bench.

She’s proud of her judicial activism; so much so, that she wears it on her sleeve and has no problem yukking it up with young impressionable law students when discussing the matter – even when the cameras are rolling.

The Human Events mailing is essentially a call to go to war over Sotomayor’s nomination, because

If conservatives don’t draw a line in the sand and take the fight to Obama over this nomination, Obama will know that he will be able to steamroll his extreme agenda of government-backed corporate takeovers, socialized health care, wealth redistribution and the advancement of so-called “social justice” down the throats of the American people virtually unopposed.

Read the whole thing.  No, actually, don’t.  I didn’t.  Just take a look.  Comments?



  1. Maxwell said,

    Read the whole thing.

    Sorry, no. I don’t ask you to read petitions from Socialist Worker Weekly;pardon me if I eschew the Coulter and Buchanan rag. I watched the video. This is just one of those things that liberals and conservatives see differently. I don’t care about “judicial activism,” and never will.

  2. amba12 said,

    I get those things to keep my immune system in shape; they give me hives. I shouldn’t actually say “read the whole thing,” because I don’t mean it.

  3. amba12 said,

    It’s impossible to avoid interpreting the Constitution, because so many things we deal with daily didn’t exist when it was written. Therefore a “judicial activist” is someone who interprets it differently than you would. If conservatives interpret it less expansively, it’s because they would like society to be more like it used to be (apropos, in part, of our discussion on self-reliance). In some respects that may well be desirable, and in a few even possible; but in many respects it is impossible whether desirable or not.

  4. Maxwell said,

    Your immune system is stronger than mine. I can’t even look at those things anymore.

    Blech – too much politics already this week. I don’t think living in DC is going to be good for me. Time for some fluffier blogposts.

  5. amba12 said,

    Oh, yes, please! Here we weren’t going to get sucked back into politics . . . I really have an allergic reaction to both extremes.

    How long do you have to live in DC?

  6. Icepick said,

    Didn’t Sotomayor state just in the last week or so (or perhaps it was Obama) that she looks forward to setting policy from the Supreme Court? Beyond my loathing of “policy”, that sounds entirely inappropriate as a role for a judge. Except that it’s par for the course for the last several decades….

  7. wj said,

    It appears to me that cases which actually get appealed to the Supreme Court fall into three categories:
    — Things which don’t belong there, which routinely get ignored. I.e., the Supreme Court lets the lower court action stand.
    — Cases where a regulation, law or action is (at least arguably) in conflict with a specific provision of US law or the US Constitution.
    — Cases where it is not clear whether one provision of the US Constitution applies or another. These are the ones the Justices end up “setting policy” — because a decision has to be made (even if by default) and the Congress and the Executive have failed to do so clearly.

    As you note, there are lots of things where at least some interpretation or the original words has to be made. (Is intercepting a cell phone transmission significantly different, as a “search and seizure) from overhearing a public conversation? Does it matter whether the conversation occurred with one party speaking in a public place?) Yes, it would be nice if the courts did not end up having to do the interpretation — but sometimes a specific action is in question, and it has to be either allowed or forbidden.

  8. Randy said,

    I’m with Maxwell (whoever Maxwell really is) on this one.

  9. jason said,

    Judicial activism. Yawn. What ended segregation? And anti-miscegenation? And abortion laws?

    Well, forget the last one since there are folks who still seem rather sore about letting a woman make decisions about her own body.

    Wink-wink-nudge-nudge. This is all so tedious. So Rush Limbaugh. So terribly vindictive for those looking for a way to salvage the conservative mentality that long ago sank with the Republican ship.

    Stop looking for vipers in every shadow. Pick your battles. This isn’t one of them that will help the cause of the Right.

  10. PatHMV said,

    Jason, judicial activism extended segregation. Plessy v. Ferguson (which created the doctrine of “separate but equal”) was an exquisitely bad, political, activist decision. It ignored the clear meaning of the language of the 13th, 14th, and 15th amendments, as well as the intent of their framers and ratifiers, in order to ratify what the justices thought the right political and policy decision was. An “activist” judge is not one who merely overturns a law as violative of the Constitution. That is the purpose of the Constitution, to trump laws which violate them, and it is the proper role of judges to do that. What makes the judge an activist one is when he (or she) makes a rule for the purpose of furthering his or her own policy preferences and believes, rather than searching for the actual meaning of the Constitution.

    The Constitution does not, in fact, have any language in it which guarantees the right to an abortion. Even legal scholars who support the outcome of Roe v. Wade have acknowledged that it’s a terribly reasoned judicial opinion. The only support Roe v. Wade can possibly have, as a matter of law, is because judges read into the Constitution something that wasn’t there, in order to achieve what they thought was good policy. In this, it bears amazing semblance to the conservative activism of the court which struck down much of the New Deal legislation (minimum wage laws, job safety regulations, over time laws, etc.), on the grounds that they interfered with the employee’s “right to contract,” an amorphous right which has, if anything, more support in the Constitution than the right to an abortion. If you want the courts to impose their own policies on those subjects, are you prepared to cope with a court that suddenly decides that the Constitution enshrines libertarianism in this country?

    It’s only “so Rush Limbaugh” because too many people don’t want to actually think through these things, preferring instead to indulge in prejudice against what they assume is the position of the right-wingers.

    Which part of the criticism of Judge Sotomayor do you disagree with? Do you agree with her that judges should let the color of the skin or the ethnic background of the litigants affect the ruling? Do you agree with her that minority judges should tend to rule in favor of minority litigants? Do you agree with her that white males aren’t as capable of having empathy for the poor and oppressed as those whose ethnic background is non-white-male?

  11. jason said,

    Jason, judicial activism extended segregation.

    I’m sure you’re referring to those rulings that put the military on the ground so as to allow non-white students into Bible Belt schools…

    And please remember the Constitution calls all non-white males less than worthy of attention. Strict interpretation? You wouldn’t like that approach…

    I never said the Constitution granted anyone the right to an abortion. I’ll ignore that entire paragraph since it’s meaningless gibberish and so much shallow argument. What I said is that judicial activism gave women the right to rule their own bodies. Are you arguing with that?

    If we’re to stick to the Constitution, women shouldn’t vote and anyone not white should have only a fraction of a say–if they have any say at all. Any more hollow blathering?

    The Constitution is a living document, a malleable image of our progress through the years. Were we to strictly interpret its content no matter what we’ve learned, you wouldn’t be here posting your point of view. In fact, you’d have nothing to say on any of this. Is that really what you think we should strictly adhere to, or are you willing to admit ‘interpretation’ is the foundation of society? Interpretation of the law, I mean. And that’s a subjective matter…

  12. PatHMV said,

    Jason, nobody has ever suggested that Brown v. Board of Education was an “activist” decision. As I noted, Plessy v. Ferguson, which was fundamentally overruled by Brown, was the activist decision. Brown was an entirely proper decision, based on the actual text of the 14th Amendment.

    The Constitution has been amendment to remove the sad legacy of apportioning representatives on the basis of 3/5 of each slave. Keep in mind that in fact that was 3/5 too much, in one sense, because slaves were not allowed to vote. The slave states wanted slaves counted as a full person, for census purposes, to increase their voting power. The northern states didn’t want to count them at all. But that’s entirely irrelevant to a discussion of judicial activism, because those odious provisions of the Constitution were amended through the democratic process (after the shedding of much blood), via the 13th, 14th, and 15th Amendments.

    Nobody on the conservative side holds the original Constitution as untouchable sacrosanct scripture. No, all we ask is that amendments to it be made through the proper, democratic process established in the Constitution itself. That worked fairly well, if painfully, at ending slavery and extending the franchise to women.

    It is indeed a living document. It can be changed. The only question is, who gets to change it? Should it be 9 justices, none directly elected, based on what they THINK is good policy? Or should it be all of us collectively, through the democratic process?

    So how’s that for “hollow blathering”? Got any examples that actually apply, or do you want to continue to ascribe evil, discriminatory motives to conservatives, whether accurate or not?

  13. Donna B. said,

    It’s up to the legislature to make laws and introduce changes to the Constitution, not judges. Keep in mind that changes to the Constitution still require ratification by the states. Why would anyone want 9 people, no matter how wise, to take that power from the people?

  14. Rod said,

    Every system of laws creates arbitrary, unfair results in some circumstances. If a creditor in an arm’s length transaction loans you money and bargains for a mortgage on your house if you do not make the payments, the creditor is allowed to foreclose and realize on his security if you default. There is nothing unfair about it. It is simply the deal you cut. Theoretically, it makes no difference whether you are black or white, rich or poor, sophisticated or not. But some scenarios make us uncomfortable in that situation. If your husband just died and you are a pregnant widow with two small children who will be thrown onto the streets, our sympathies begin to move towards you. If we learn that the house dropped in value because of market factors beyond your control, we tilt towards you a bit more. If the creditor is a bully and a braggart who beats his wife, we really want you to keep your house and for him to lose. Did I mention that your husband had prudently provided sufficient insurance, but the insurance company went into receivership and will not pay anything for months or years? While these circumstances affect our sympathies, the basic situation has not changed: You borrowed money and did not pay it back when you said you would, and the law says the creditor should be able to take your house.

    Every judge eventually faces a case in which the law compels one conclusion and the equities point to another. At that point they look for a legal fig leaf to put on their naked exercise of power, and if they can find one, they become activists. If they are conservative activists, they may ignore volumes of precedent to reach the conclusion that waterboarding is not torture. If they are liberals, they might find a right to privacy implicit in the Bill of Rights to justify never telling the parents of a 14 year old that there daughter is getting an abortion, even though the parents’ informed consent would be required to suture a cut on her arm or prescribe a mild sedative.

    Whenever a judge twists a statutory interpretation to avoid a harsh result, we see it as compassion. When it is done to reach a politically astute result we see it as expediency or wisdom, depending on our politics. And, most judges do it some of the time. The question is not so much whether Judge Sotomajor is an activist as what she is an activist about.

    The problem with too quickly condemning her “wise Latina” opinions is that we all have some perspective on life based on our life experiences. I don’t want her asking, “What would a wise Latina say about this?” when trying to decide cases. On the other hand, she will be one justice out of nine. She will probably come down rather predictably as an Obama appointee on the issues most of us think about when we consider the Supreme Court, but she just might offer insight into some parts of life which the other Supreme Court justices have never experienced.

  15. amba12 said,

    Fair and balanced, I say without irony.

  16. PatHMV said,

    Rod, that’s true enough, as far as it goes. We hope for judges who, occasionally, temper the law with a bit of mercy. The evil banker foreclosing on the poor widder woman is a staple of American fiction.

    But in reality, cases like the one you’ve worked so hard to create are relatively few and far between. Most of the real poor widows are victims of scams of one sort or another. And it usually doesn’t take any “activist” reading of the law to reach the right result. There are ample legal doctrines available to preclude turning the farm over to the bank simply because the owner has been tricked, one way or another, into signing some piece of paper.

    If the Supreme Court merely decided run-of-the-mill cases, I’d have no problem with “activism” of the sort you describe (which is not the sort of activism which conservative jurists normally are perturbed about). But that’s not what the Supreme Court does. It decides what the Constitution says. Each of its cases functionally set rules which impact not just the litigants in that case, but thousands or even millions of other people. That’s not the time for “empathy,” of the sort you describe, but for real analysis of what the Constitution says and means.

    To me, the quintessential example of “activism” can be seen in Justice Kennedy’s opinion in Roper v. Simmons. Roper involved a murderer who was 17 at the time he committed the murder. The Court, by a 5-4 vote, decided that it was unconstitutional to execute Simmons, because he was under 18 at the time he committed the murder. Justice Kennedy wrote the majority decision finding that a “national consensus” existed against the execution of those who were minors when they committed their crime. The case was decided in 2005.

    In an earlier case in 1989, Stanford v. Kentucky, the EXACT same question was raised. In 1989, Justice Kennedy joined the majority opinion, which held that the Constitution did NOT prohibit executing a murderer just because he was under 18 at the time he committed it.

    Got it? In 1989, Justice Kennedy agrees that it’s constitutional to execute someone who committed murder before their 18th birthday. In 2005, Justice Kennedy decrees the opposite.

    What changed? The Roper decision goes into that in some detail. Justice Kennedy, you see, believes that interpretation of the 8th Amendment has nothing to do with the words of that Amendment, or how they were understood by the people who ratified the 8th Amendment, but instead prohibit any punishment if a “national consensus” has emerged against the use of that punishment. When you drill down through all the data littering his opinion, you discover that between 1989 and 2005, 5 states, just 5 states, had changed their law, to no longer provide for the death penalty for those who were 16 or 17 at the time they committed murder. In only 4 of those states was it a policy decision made by the legislature; in the 5th state, the state supreme court decided that the state constitution prohibited doing so.

    So the end functional result is that the Constitution was amended by the actions of 5 states, not the 2/3 action of the Congress and 3/4 approval of the states which is required for actual amendments to the Constitution. I assure you this is all very explicit in the text of Justice Kennedy’s decision in Roper. It’s not that he had some philosophical epiphany regarding the evils of executing “minors.” He doesn’t say he decided he got it wrong in Stanford, and has since changed his mind. No, he says that what is constitutional and what is not constitutional had changed in that 16 year period.

    That’s wrong, and very dangerous. As I pointed out in an earlier post, activist judges during the New Deal era struck down many laws which we now accept without question as being unconstitutional for interfering with a “freedom to contract,” which was about as nebulous as today’s “right to privacy.” It was wrong to do so then, and the adherents of that philosophy of judging, judges like Judge Sotomayor, are wrong to do so today.

  17. Rod said,

    When a young lawyer asks an more experienced attorney a strategy question in litigation, the experienced lawyer’s first comment is usually, “Who are you in front of?” The judge’s perspective colors everything.

  18. PatHMV said,

    In trial litigation, yes. In appellate litigation? That’s an entirely different story.

    Do you disagree with any of my explanation about the dangers of the “living Constitution” as embodied in Justice Kennedy’s decision in Roper? Do you want 5 judges to be able to amend the Constitution? 5 states?

    Note also that the rules laid down by relativists like Kennedy are never consistent. The “trend” never works contrary to their policy preferences. We don’t say “well, more states are trending to restricting abortion, so there must be a national consensus emerging that abortion is not constitutional.”

  19. PatHMV said,

    Let me also point out that the relativist approach really does have negative consequences even for the poor downtrodden folk. In quite a number of 4th and 6th Amendment cases, Justice Scalia has argued that the text of the Constitution provides far greater protections than the relativists would allow. In one case, for example, a trial court refused to let a defendant be represented by the counsel he wanted to hire. The S. Ct. held that this was an erroneous decision, that the judge was wrong to deny him the counsel he wanted. But, looking at the “purpose” of the 6th Amendment, and the general interpretative gloss put on it by the cases, they decided that his fundamental right to a fair trial wasn’t violated, because the counsel he was assigned by the court was technically “competent.” (To be technically “incompetent” in that context requires something close to being illiterate or drunk throughout the trial.)

    Justice Scalia said, wait a minute, he has a fundamental right to the counsel of his choice. That right was violated, therefore his conviction is not valid. He did so looking at the language of the 6th Amendment, not some larger, vaguer “purpose” or “penumbra.”

    He’s done the same thing in a number of 4th Amendment cases. In one case, police used an infrared scanner to look at the inside of a house. The relativists again looked at purpose and penumbras and all sorts of stuff outside the text of the Constitution. Justice Scalia said, wait a minute, let’s go back to the basics. They had no warrant. They used modern technology to look inside someone’s house. That’s a search of the house, and thus prohibited without a warrant. (That one was an odd voting line-up. Scalia and Thomas joined Ginsburg, Breyer, and Souter in the majority. O’Connor, Kennedy, Stevens, and Rehnquist were in the dissent.) There’s a brief discussion of that case, here. Look at the key passages from the Scalia majority opinion and the Stevens dissent. It shows the real difference between “conservative” and “liberal” interpretation processes in a context where the liberal method results in less privacy and less protection of rights… because the liberal method is entirely divorced from any real rules; it’s sophistry, in the end.

  20. amba said,

    Pat, you are on a roll.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: