Some called it a confirmation conversion. At times during her confirmation hearings, Judge Sotomayor sounded as if she could have been Chief Justice John Roberts' sister.
Obama advisor David Axelrod said on May 26 shortly after the Sotomayor nomination was announced that Obama picked her because he "wanted someone whose philosophy of judging was his." President Obama said, among other obscurities about a more activist judiciary, he wanted judges with "empathy." We've already learned Mr. Obama's euphemisms, such as "hope and change," mean more government.
What President who appoints czars, fires CEOs, and wants the federal government insinuated into ever corner of the economy -- because he cares about you -- wouldn't want judges who share his philosophy, right?
But something happened. In what appears to have been an historic first, a Supreme Court nominee expressly rejected the underlying judicial criteria of her presidential sponsor. (You probably didn't hear about it on the nightly news because the media are too busy promoting the President's agenda.) When asked whether she ascribed to President Obama's judicial philosophy of more empathy and perhaps less rule of law, Judge Sotomayor replied, "No, sir, I wouldn't approach the issue of judging the way the president does. Judges can't rely on what's in their heart."
So much for President Obama's views about 1/3 of the branches of government. We, of course, worry he's got it wrong about the other two branches as well.
Six of the seven Republicans on the Senate Judiciary Committee voted against moving Judge Sotomayor out of committee. Senator Lindsay Graham sided with the Democrats in the foregone vote, which ended up 13 - 6. The recurring objection by Republicans against Judge Sotomayor was about her judicial philosophy -- the one President Obama claimed she shared with him -- or at least its lack of clarity. Two Republicans, Senators Hatch and Grassley, had never voted against any Supreme Court nominee in their combined 61 years in the Senate. Something was clearly amiss.
Judge Sotomayor never made clear where exactly her judicial philosophy rested. One senator called the judicial philosophy of empathy and bias "disqualifying." In her opening statement, Judge Sotomayor immediately went on the defensive. She said, "Senators have asked me about my judicial philosophy. It is simple: fidelity to the law."
No one expected her to claim to be an originalist. But no one expects a judicial nominee to profess "infidelity" to the law, either. "Fidelity to the law" is not a judicial philosophy of someone who is being considered for the highest, and in some cases, last forum to decide great matters under the Constitution. It's a baseline requirement for civil society. Why profess a judicial philosophy that sounds more like what someone would say at a parole hearing than a Supreme Court confirmation hearing?
Much of Judge Sotomayor's hearing focused on three of her controversial decisions: Ricci v. DeStefano (Equal Protection Clause), Didden v. Village of Port Chester, (5th Amendment protection of private property rights), and Maloney v. Cuomo (2nd Amendment). Ranking Republican member Jeff Sessions made this observation about those three key, controversial Sotomayor decisions:
"The only consistency [in those decisions] is that the result favored a liberal pro-government ideology against the individuals asserting their constitutional rights."
It seems Judge Sotomayor does indeed share a judicial philosophy with President Obama. It is empathy in favor of government power over constitutional rights.
Judge Sotomayor had to dissuade America more so than the lopsidedly Democratic Judiciary Committee that she is not a judicial activist. In that regard, conservatives and constitutionalists have won the debate. Blatant judicial activism is out.
In fact, judicial activism is so out of style that Democrats try to portray the judicial philosophy of originalism, whereby judges may actually check constitutional abuses by the other two branches of government by occasionally declaring laws or acts unconstitutional, the "new" form of judicial activism.
Originalism is a threat to big government. Now we have those who confuse, intentionally or not, judicially created policy and rights with checks and balances under a system of limited and enumerated powers.
Legislators pass too many bills without reading them. We have presidents sign bills into law with the intent that judges would cure them constitutionally. Judges, in the name of restraint, defer to the democratic process. Unless we have judges with sound constitutional principles, though, our system of checks and balances has all the discipline of a frat house on a Friday night.
We don't expect President Obama to appoint originalist judges. However, nominees shouldn't be able to hide behind empty professions of "fidelity to the law." We expect our neighbors to have fidelity to the law. We must expect Supreme Court nominees to articulate a more serious approach to judicialism. The next step in the evolution of judicial confirmation hearings should be to weed out judges whose judicial philosophy embraces big government at the expense of fidelity to the Constitution.
I think President Obama will be getting in Judge Sotomayor exactly the kind of justice he was looking for, even if she professed she isn't.
Mark Fitzgibbons is president of corporate and legal affairs at American Target Advertising, Inc.