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.
