Posted on June 2,
2024
Oh, Woe Is Sotomayor
Here's wishing many unhappy returns
by
Daniel
Clark
For the past two years, the Democrats and their allies
in the news media have been doing opposition research on conservative Supreme
Court justices, to get information they think will justify their calls for
recusal or even resignation. In
particular, they have tried to deduce on the basis of practically no evidence
that Samuel Alito, or at least his wife, has some opinion about the Capitol
riot that would bias his judgment on any related case that came before
him. Meanwhile, liberal justice Sonia
Sotomayor has announced to anybody who is willing to listen, and not for the
first time, that she views her role on the court as that of an advocate,
fighting for causes, instead of as a judge who dispassionately applies the
Constitution as written.
"There are days that I've come into my office after an
announcement of a case and closed my door and cried," she recently told a group
of students at Harvard. "There have been
those days, and there are likely to be more ... You have to shed the tears, and
then you have to wipe them and get up, and fight some more." Those are not the words of a judge, who hears
a case and tries to make the legally correct ruling, but of a legislator, an
advocate, a political partisan. This is
the way she views her role, as she has repeatedly declared.
This
past January at Cal-Berkeley, she said, "[E]very loss traumatizes me in my
stomach and in my heart, but I have to get up the next morning and keep
fighting." None of the justices rules in
the majority in every case, but for them to perceive dissents as "losses" is to
fundamentally misunderstand their function.
Had Clarence Thomas ever characterized his judicial career as a series
of personal victories and defeats, Democrats would angrily demand that he step
down. Well, they do that anyway, but
this time they'd have a point.
In the 2022 Dobbs v. Jackson Women's Health
ruling that overturned Roe v. Wade, Sotomayor joined Justices Stephen
Breyer and Elena Kagan in dissenting "with sorrow." Had they been less emotionally invested, they
might have realized that they had no legal basis for their conclusions. In fact, they tacitly admitted as much when
they assailed the Constitution and its authors as sexist, and argued that this
is why it is incumbent upon modern liberal jurists to concoct a right to
abortion. Like many of Sotomayor's
remarks, this is something that liberal judges don't typically say out
loud. While paying lip service to their duty
to faithfully interpret the Constitution, openly disdaining that same document
is something of a novel legal approach.
"Those responsible for the original Constitution,
including the Fourteenth Amendment, did not perceive women as equals," they
wrote. "When the majority says that we
must read our foundational charter as viewed at the time of ratification ... it
consigns women to second-class citizenship."
Of course, the Fourteenth Amendment was not originally part of the
Constitution, but pointing that out seems like splitting hairs, in the context
of such a thoughtlessly spewed jumble of inaccurate liberal assumptions. The opinion did not follow up with an example
of language from the Constitution that might arguably consign women to
second-class citizenship, because none exists.
Either the justices didn't bother to look for one, or else they simply
refused to allow its absence to derail their contrived indignation.
It
follows that there is no basis for stereotypically ascribing misogynistic
attitudes to our founding fathers.
John Adams wrote the Constitution of the Commonwealth of Massachusetts,
of which the United States Constitution is largely derivative. Does anyone doubt that John Adams perceived
Abigail as his equal? Such a question
would not likely occur to three of America's most accomplished liberal minds. Such is their settled assurance of their own
superiority.
The Dobbs dissent is a thorough academic
embarrassment, for the very reason that it is the result of liberal justices
fighting for a cause, instead of making a faithful effort to interpret the
law. They argue not like great legal
scholars, but like a party spokesman on a confrontational cable news show. When the facts don't fit their policy
objectives, they engage in ad hominem attacks and emotional exploitation.
At her 2009 confirmation hearings, Sotomayor
characterized her philosophy as "fidelity to the law." If there's anything phonier than that, it's Democrat
senators Dick Durbin and Sheldon Whitehouse demanding to meet Chief Justice
John Roberts for the purpose of discussing the Alito "problem." Roberts, who has no authority to discipline an
associate justice anyway, rejected their demands as any responsible person
would. They feign concern about the impartiality
of the conservative justices, even as they consider judicial impartiality to be
the enemy. Evident of this is their lack
of concern over Justice Sotomayor, who might as well make herself up in Braveheart
face paint whenever she enters the chamber.
Durbin, Whitehouse and their party want the same thing
that Sotomayor does, which is to discard the Constitution and turn the Supreme
Court into a mega-legislature. If they ever
succeed in packing the Court, then the new, partisan Democrat majority will be able
to create new laws from the bench, unencumbered by constitutional checks and
balances. Their campaign against
constitutionalists like Thomas and Alito is intended to justify such a radical
realignment.
Nobody should wish for another person to be unhappy,
but as long as Sotomayor's happiness is derived from subordinating the Bill of
Rights to the whims of judicial activists like herself, her sadness is the only
acceptable outcome. If respect for the
Constitution and the men who wrote and ratified it traumatizes her stomach and
her heart, then so be it. The pain that
she feels from "losses" like the Dobbs ruling are nothing compared to
the harm that is done to others when she wins.
The Shinbone: The
Frontier of the Free Press