Sotomayor, Judicial Activism and the Cult of Stare Decisis

Stare decisis is an imposing term. It sounds like it carries great authority. Literally, it means "to stand by that which is decided." Now, if we applied it to the U.S. Constitution and the duly passed amendments to that document, stare decisis would be an instrument of maintaining order in a democratic republic. However, the term as used by Liberal-Leftist-Progressive-Socialist-Democrats, has come to mean "a previous group of arrogant oligarchs ignored the Constitution and ruled according to their Leftist philosophy, therefore any attempt to correct that wrong is "judicial activism."

Today, during a radio newscast about John McCain's decision to vote against Sonia Sotomayor's nomination to the Supreme Court, a pro-Sotomayor senator was quoted who disputed the accusations that she is a judicial activist. No, Sotomayor is NOT an activist. The senator assured us that Sotomayor is a big believer in state decisis. Well, I feel sooooo much better! Of course, the Senator did not claim the justice-in-waiting would be a champion of the Constitution.

Judicial activism is a meaningless term without context. At one time, this term was applied to those who sought to create their own law without the Constitution's approval. Think the majority in the laughable Roe v Wade decision. They made up a constitutional right to kill a baby.

Many Conservatives still use the term "judicial activism" as a general statement of what is wrong with the federal courts. The problem is that they are several decades too late. The Supreme Court has been activist in an anti-Constitution sense for so long they have taken over the meaning of the term. Now, judicial activism is used to describe those who want to RETURN to the Constitution. Yes, in the Bizarro world that is the mind of the modern Liberal-Leftist-Progressive-Socialist-Democrat preserving the U.S. Constitution is judicial activism.

In the year of our Lord 2009, it is time Conservatives embrace judicial activism and make it a goal for future federal judges. The math is simple: in terms of legal importance, stare decisis is less valid than the U.S. Constitution. The language needs to be clear. Any nominee to the federal courts should be asked to define judicial activism. That does not require them to discuss issues that might be heard in a case. It does require a would-be federal judge to publicly state whether they put the decisions of previous courts ahead of the U.S. Constitution.

I tend to agree with the senator who said Sotomayor will be faithful to stare decisis. However, during her hearings, Sonia Sotomayor stated that the Constitution should come first. Stare decisis and the Constitution are often polar opposites. She will be confirmed. However, it will be interesting to see if she will be honest when she takes an oath to uphold the Constitution or if her liberal ideology will be her judicial beacon.

Sonia Sotomayor 2.0: Originalist Judge Or Lying Opportunist?

Barack Obama was clear about his ideal Supreme Court justice: he or she should put personal empathy ahead of the Constitution. In fact, the former constitutional lecturer doesn't seem constrained by the document in any way. He voted against both John Roberts and Sam Alito, even though he admitted both were qualified. Both "no" votes were ideological.

We have heard and read about Sonia Sotomayor's judicial rulings and speeches about the law. She certainly has seemed to be in the Obama mold. "Social justice" comes before actual justice. Latina women make better judges than white men. Federal district court is where policy is need (despite Article I of the Constitution giving ALL legislative powers to Congress).

However, a different woman showed up for the Senate hearings leading to a vote on Sonia Sotomayor's appointment to the Supreme Court. This woman sounded like a champion of the rule of law who is more in line with Alito and Roberts than Barry Vladimir Hussein Soetero Obama.

James Taranto chronicled Sotomayor 2.0 for The Wall Street Journal. Some snippets:

Under normal circumstances, a judge who says the things Sonia Sotomayor has said during her confirmation hearings would not be able to win confirmation in a Senate with a solid Democratic majority. Consider some of the positions she has taken:

• On empathy: She repudiated the idea that it has any place in judging, as we noted yesterday.
• On foreign law: She expressed her agreement with Justices Antonin Scalia and Clarence Thomas and said flatly, "Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law."
• On the 2nd Amendment: She said, "I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller." As to whether the Second Amendment applies to the states under the incorporation doctrine, she agreed with Justice Scalia that this is an open question.
• On abortion: She declined to endorse Roe v. Wade, offering only the usual dodge that it is "the precedent of the court and settled, in terms of the holding of the court."
• On judicial activism: She said that judges' "imposing policy choices in--or their views of the world or their views of how things should be done" is "improper."

Judge Sotomayor was under oath when she testified in front of the Senate. Now, I hope Sotomayor 2.0 is really a new and improved legal mind who indeed plans to use the Constitution as her guide rather than her unique Latina life experience. But, if she is more like the Obama ideal, that begs a question: does lying to the Senate in a judicial hearing constitute "high crimes and misdemeanors?" In other words, is that an impeachable offense? When Justice Breyer or Ginsburg inevitably use foreign law to justify a screwball decision and Sotomayor signs on to their opinion, will she have committed perjury? Something to file away for when the opinions start to flow.