‘You SCOTUS ‘Cause You Ain’t Us’


Much has been written about the politicization of the confirmation process since Tuesday's nomination by President Obama of 2nd Circuit Court of Appeals Judge Sonia Sotomayor for appointment to the United States Supreme Court, in Justice David Souter's soon-to-be-vacant slot. As HeadCount's legal intern, I wish to correct a few misconceptions:

1) Just as the Constitution does not actually contain the phrase "separation of Church and State" (that was Thomas Jefferson), the Constitution also never articulates anything resembling the modern confirmation process. Article II, which explicitly details the role of the executive branch (assuming we actually have a "limited government of assigned powers" and not merely two branches subject to the whim of a more powerful, dare I say divine, president. See: Abraham Lincoln, FDR, Ronald Reagan, etc...) merely provides the President with "Power...by and with the Advice and Consent of the Senate" to "appoint...Judges of the Supreme Court." Nowhere in the Constitution does it say, for example, that every potential Justice should be forced to answer questions about abortion on national television. ("If a tree falls live on C-Span...")

2) The Senate rarely rejects nominees. Flat out rejection has only happened twelve times. To be fair, I would have sided with the majority of the 1893 US Senate, which rejected Grover Cleveland's nominee, simply on the grounds that anyone named Hornblower should not be permitted to add the title "Justice" to his name. Often, as with Harriet Miers in 2005, a president will withdraw a nomination because of a perception that the nominee will not succeed in gaining the required majority of votes in the Senate.

3) The most recent rejection was Robert Bork in 1987. Bork was/is an originalist in that he follows a line of legal reasoning holding that the framers of the constitution's historical intent and our historical understanding of the original audience is of paramount significance to our constitutional interpretations. (Justice Antonin Scalia is perhaps best known on today's court for this belief structure.) Bork's originalist views conflicted with many on the pro-choice side of the political aisle. As a result, left-wing lobbyists successfully helped block his appointment. By contrast, Sonia Sotomayor has expressed a preference for decision-making on a case-by-case basis, a so-called legal-realist line of reasoning.

4) Judicial activism, a much-maligned characteristic often leveled at judges on both sides of the political spectrum, is, for lack of a better term, a considerable misnomer. Many feel a need to stop judges who "legislate from the bench." The controversy arises on the grounds that such a judicial role runs contrary to the middle-school history lesson demonstrating how legislature makes the laws, the president enforces the laws, and the judiciary interprets the laws. However, every judge is of necessity an activist, particularly on the Supreme Court, where the overturning of Congressional legislation is akin to the unmaking of law (= the "making" of un-law.) Furthermore, just as anyone hearing a Grateful Dead lyric necessarily imparts their own personal feelings and understandings into any interpretation they draw from it, judges are human and thus inherently affected by their own core beliefs and values.