Last month Barack Obama nominated Sonia Sotomayor, a federal appeals court judge, to replace the retiring David Souter on the Supreme Court. As battles go, the battle between Democrats and Republicans over Sotomayor hasn’t been particularly hard-fought so far – at least in comparison with some of the legendary heated nominee battles of the past. This is because, with 60 Democrats in the Senate, Republicans have about as much hope of sinking her confirmation as the media does of pronouncing her name correctly (for the record, it’s Soh-toh-my-YOR). However, this hasn’t stopped the Right from attacking her and it’s important that Democrats are effective in rebutting these attacks, especially since they won’t always have the votes to waltz through their chosen nominee in the years to come.
Luckily for liberals the main form of attack on Sotomayor – aside from a liberal dose of racism & sexism from the ever-vocal conservative fringe – has come from the worn, dog-eared folder marked “judicial activism”. Accusations of being an “activist judge” are par for the course for liberal nominees to any high court in America. But what is judicial activism? In the fevered minds of conservative Republicans, activist judges are those who frequently strike down state or federal legislation so they can impose their liberal policy agenda on America. Instead of acting like judges, they act more like politicians: legislating from the bench. They are frequently contrasted with conservative-minded judges, who simply “apply the law of the land”. The nomination of Sotomayor has brought these old accusations back into the open, with a new twist that as part of her liberal activism Sotomayor favours the rights of minorities over those of whitey.
The main problem with the “activist judge” critique is that it’s really, really dumb. For a start, the idea that judges, when faced with controversial cases, should simply “apply the law” doesn’t make any sense. The whole point behind the kind of case that ends up in an appeal court is that it’s impossible to “apply the law”, since the application of the law in this case isn’t particularly obvious – thanks in no small part to the fact that the constitution is full of phrases that are incredibly vague (hello, second amendment!). Indeed, the existence of these “hard cases” is virtually the first thing a law student of any legal system learns about, but the last thing that many conservatives would ever acknowledge. But those attacking Sotomayor aren’t (just) making this attack out of stupidity; they are using it as a way to disguise their real, extremist aspirations within misleading but effective populist rhetoric. To see the proof of this deceit in action, we need only do something that the American Right (and in large part the American media) can’t really be bothered with: that is, actually examine the cases decided by Sotomayor that have got conservatives so hot under the collar.
Perhaps the most high-profile case that’s been used by Sotomayor’s Republican critics to attack her has been the case of Ricci v DeStefano, which concerns the always explosive issue of affirmative action. In this case, a group of white firefighters in New Haven, Connecticut took an employment test that was meant to go towards considering promotions. However, the city decided not to accept the test results, since they would have meant that none of the African Americans who took part would be eligible for promotion. Thus they feared that the test would be discriminatory and in breach of the 1964 Civil Rights Act. The firefighters took the city to court, and a district court voted in their favour. When the case went to appeal, a seven judge majority (including Sotomayor) upheld the district court’s decision, noting – in a controversially brief opinion – that though the judges were “not unsympathetic to the plaintiff’s expression of frustration,” it simply did not follow that he had a valid claim under the Civil Rights Act.
Conservatives were furious – to them this was a classic example of activist judges screwing over the white man in order to further a liberal agenda of excessive affirmative action (or “positive discrimination” as those on the Right call it). Fuelling their anger was the fact that the plaintiff, Ricci, was an extremely sympathetic character who had dyslexia and had gone to tremendous effort to receive special training so he could pass the test.
The problem for those who would use this case to beat up on Sotomayor is that it really isn’t an example of judicial activism. What the court was essentially deciding was that the city was right to fear that the test might be in breach of the Civil Rights Act. At no point were they asked to defend the constitutionality of the act itself. And as for the plaintiff, he may have been an incredibly sympathetic character but, if the judges had overlooked the small matter of the relevant provisions in the Civil Rights Act in order to help him out, then they would have been guilty of judicial activism. What this case shows more than anything is the hollowness of cries of “activist judge” – it’s clear that conservatives’ real beef in this case was with the Civil Rights Act itself, and the way in which certain portions of it support the affirmative action policies they so despise. They would like nothing other than for a judge to strike down several parts of that historic piece of legislation. In other words, they are the ones who would promote judicial activism, not the likes of Sotomayor.
But it’s not just the case of Ricci that exposes the real agenda behind those who cry “activism”. In Maloney v Cuomo, a New York attorney claimed that a state law prohibiting the possession of everyone’s favourite martial arts weapon – nunchuks - violated his Second Amendment right to bear arms. A distict court rejected his claim, and an appeal panel that included Sonia Sotomayor affirmed the decision. Conservatives were up in arms: surely this was a classic example of liberal judicial activism attempting to strike down an American’s constitutionally protected right to fill his house with enough guns to arm a small revolution? Except, um, no it wasn’t. The panel were relying on a previous 19th century Supreme Court case that ruled that the Second Amendment applies only to limitations the federal government seek to impose – in other words individual states can do what they like. Since a second circuit appeal court can’t overule the Supreme Court (it wouldn’t be very supreme otherwise, would it?), their only option was to follow that decision. In other words, far from dabbling in a spot of judicial activism, Sotomayor’s court was .. dutifully following the precedent laid down by a higher court.
As part of their criticism, conservatives pointed to a recently decided Supreme Court case District of Columbia v Heller, which overturned a Washington D.C. state ban on handguns. Except, as the appeal court in Maloney pointed out, it’s highly questionable whether that changes the long-held principle that the Second Amendment only applies to the federal government. So in other words, the conservatives who point to this case and accuse Sotomayor of judicial activism are themselves relying on a currently vague case at the expense of solid legal precedent. Calling this hypocritical is like saying that Mike Tyson has a questionable attitude to women. Once again, the motive of conservatives is clear: they’re not worried about strictly applying the law, they’re concerned about protecting their own interpretation of the constitution by any means necessary. Cries of judicial activism with regards to Maloney are simply a disguise for the conservative belief that the Supreme Court itself needs to change its mind and firmly apply the Second Amendment to states as well (which it may well do, worse luck, when the case of Maloney reaches it later in the year).
As far as Sotomayor’s case history is concerned, the examples of her not being a judicial activist go on and on. When it comes to the hot potato of abortion she’s not ruled on the issue directly but did rule, in Centre for Reproductive Policy v Bush , that a US policy of prohibiting foreign organisations that receive U.S. funding from supporting abortions did not violate the first amendment rights of a pro-abortion group. In doing so, Sotomayor relied on the solid precedent of an identical case from the same court. So much for the old trope of a liberal judge forcing pro-abortion policy onto the courts! In Pappas v Guiliani, Sotomayor asserted the first amendment, free speech rights of an employee who’d been dismissed for racist language; resisting the urge, unlike her colleagues in that decision, simply to use the court to punish a white bigot. (This case also rather puts a dent in the line of attack that says that Sotomayor overly favours racial minorities.)
It should now have become clear that the modus operandi of conservatives is clear and follows a predictable pattern: accuse a liberal judicial nominee of being an activist judge, putting policy before the law. Under the guise of this populist attack, promote your archaic interpretation of the constitution. It’s a great shame to see the national debate over judges dominated by this self-evidently illogical rubbish, since there is a genuine debate to be had between the opposing sides of the judicial spectrum. This often revolves around the battle between the “living constitution ” theory – a progressive view of the constitution that puts it in context of the social realities of today – versus theories like “originalism” or “textualism”, conservative legal philosophies which emphasise loyalty to the originally intended meaning of the constitution. You could argue all day how much these theories are genuine or simply a product of a judge’s ideological leanings but the point is that, unlike the fake debate of “judicial activism” versus “applying the law”, they actually mean something.
Thus, by obscuring the debate with ridiculous and illogical cries of “judicial activism”, conservatives poison the debate about how judges should decide their cases and reduce it to inane, opportunist drivel. It’s not surprising that they should resort to this tactic, since a majority of the American public are pro-choice, supportive of reasonable affirmative action and generally sane – thus it’s hard for conservatives to be honest about their real agenda. With the nomination of Sotomayor, Democrats have an opportunity to rebut these tactics and show them up for the empty politicking that they really are. It might be tempting in this case just to let the votes do the talking – but sooner or later liberals are going to have a real judicial battle on their hands, and they could do with the practice.
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June 28th, 2009 at 01:47
Great post, Ed.
I have to say though, originalism does seem to be a pretty dishonest doctrine. As I pointed out to Justice Scalia (!), originalism would not have ruled in favour of Brown in Brown v Board. (He responded by claiming that I was bringing out the ‘red rag’ of the living constitution movement, but that he probably – PROBABLY! – would have sided with the majority, but only because of the equal protection clause in the 14th Amendment. Which is bullshit, because the 14th said nothing about segregation, and Plessy v Ferguson basically affirmed the view of that era that segregation was acceptable. You can only get the (correct) outcome that was the case in Brown v Board if you read these articles in the context of present-day standards of decency.) I don’t think there’s anything disingenuous (or bad) about arguing that society tends towards decency, and that courts should reflect this.
As an aside: I think it’s interesting how liberals often do their best to deny how liberal they (or someone they support) are, rather than saying “yes, they’re liberal, and that’s a good thing”. Maybe we all just need to be a bit more assertive?