Posted on August 12, 2009

by

Daniel Clark

During her confirmation hearings, Supreme Court nominee Sonia Sotomayor described her judicial philosophy as "fidelity to the law." In a 2005 speech at Duke University, however, she said that the "court of appeals is where policy is made," a direct admission of a philosophy of legislating from the bench. So what's changed between then and now? Aside from her words, probably nothing.

Left-wing spin machine Media Matters tried to deny Sotomayor's judicial activism by placing the Duke quote in context, and then misrepresenting that context entirely. The site noted that after saying the federal judiciary creates law, she added, "OK, I know, and I know this is on tape and I should never say that because we don't make law. I know, OK, I know. I'm not promoting it, and I'm not advocating it. I'm -- you know …" She might as well have added, "nudge nudge, wink wink" while she was at it.

As anyone who has listened to the audio can tell, she was engaging in the exact same behavior that she displayed at her confirmation. She was offering an official version of her views for public consumption, when she had already told us that she really believes the exact opposite. Just in case there is any doubt about this, the remainder of the quote -- which Media Matters provided without any apparent understanding of its significance -- reverts to her original admission.

"I often explain to people, when you're on the district court, you're looking to do justice in the individual case," she said. "So you are looking much more to the facts of the case than you are to the application of the law because the application of the law is non-precedential, so the facts control. On the court of appeals, you are looking at how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law."

When Sotomayor uses the word "law," she does not mean legislation. Instead, she's referring to the cumulative effect of all the capricious rulings that are made as a case works its way through the judicial system. She equates the absence of precedent with the absence of law, and therefore believes the district courts are free to base their rulings on "the facts," which means nothing more than that they may rule in accordance with their own desired outcomes. It is then the role of the appellate courts to subjectively determine the direction in which this new "law" will grow. Hence her explanation concluded, just as it started, by stating that it is the role of the judiciary to create law, her sarcastic denial notwithstanding.

Her pledge of "fidelity to the law," then, is a self-fulfilling promise. If one accepts her premise that any decision she makes is part of the law's developmental process, then her infidelity to the law becomes a logical impossibility. That premise, however, is a pernicious lie. It is essentially a rephrasing of the "living Constitution" paradigm, by which the judiciary usurps legislative power from the elected representatives, so that the American people no longer have any role in creating the laws under which they must live.

Sotomayor's nomination was confirmed with unanimous support from Senate Democrats, along with nine of the Jellyphants from the GOP. Still, conservative legal analyst Jonathan Adler says the vote indicates that the tide has turned against judicial activism. "Insofar as Sotomayor and her defenders backed away from her prior statements and speeches, disavowed the president's embrace of 'empathy' in judging, and refused to articulate or defend a liberal or 'living Constitution' approach to constitutional decision-making, the battle over the courts would seem to have shifted to a more conservative terrain."

He may be correct, as far as the societal aspect of the matter is concerned. The more significant and disconcerting result, though, is that the judicial activists have shown that they can retain their political power, no matter how discredited their arguments may be. They can simply do it in the same way that liberals win elections -- by lying about who they are and what they believe. Far from being a setback for future liberal Supreme Court nominees, the Sotomayor confirmation gives them a blueprint for success. All they need to do is offer the Senate the halfhearted and meaningless concession that they're in favor of that "law" thing.

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