Order in the Court!
Posted on June 8th, 2009
The Supreme Court is a somewhat mysterious domain of American Government. The only input that the American people have in selecting their Supreme Court justices is their vote for the President. The importance of that input is evident when you consider that the Supreme Court is the highest court in the land – its word is law that cannot be revoked outside itself. Furthermore, not only does it consist of officials chosen by the President, but the officials serve for life (during “good behavior”) rather than by limited terms. This set up adds stability to the Judicial branch of the federal republic, but if a mistake is made we have to live with it for quite awhile!
In the first draft of the Constitution, Article IX, Section 1 stated that the Senate would have the power to appoint Judges to the Supreme Court (1). But by the final draft, it was decided in Article II, Section 2 that the President would have the power to appoint the Judges “by and with the advice and consent of the Senate”. The Senate evaluates the nominees based on their fitness to serve. This fitness is generally determined by their level of capability and experience as expressed in their judicial record. Thus, constitutionally, the ideology of the judge ends up at the President’s discretion and power alone.
Just this last month, President Obama nominated a new Supreme Court Justice to take the place of retiring Justice David Souter. If confirmed, Sonia Sotomayor will be the third woman and first Hispanic to serve on the Supreme Court. Who is Ms. Sotomayor? A federal appeals judge for the United States Court of Appeals for the Second Circuit (2), Sonia Maria Sotomayor was born and raised in a public housing project of the Bronx after her family moved from Puerto Rico to New York. She is divorced and has no children (3). Her father had a 3rd-grade education and worked as a welder, but died when Sonia was only nine years old. Her mother, a nurse, then worked two jobs so that Sonia and her brother, Juan, would have a good education. Sotomayor graduated valedictorian from her class at private Catholic schools Blessed Sacrament and Cardinal Spellman High School, where 99% of graduates go to college (4).
As a child, Sotomayor was fascinated by the Nancy Drew books and wanted to be a detective, but she was told she would never be able to do such work since she developed juvenile diabetes (5). Watching Perry Mason do similar investigative work on TV inspired her to become a lawyer instead. She won a scholarship to Princeton University, where she graduated summa cum laude in 1976. Her chosen Princeton yearbook quote was “I am not a champion of lost causes, but of causes not yet won.” (Norman Thomas). Sotomayor then got her Juris Doctor degree from Yale Law School in 1979. Afterward, Sotomayor worked as an assistant District Attorney with the District Attorney’s Office of New York County and in the private practice of law in New York City with the firm Pavia & Harcourt. President George H.W. Bush nominated Sotomayor to the U.S. District Court in 1991, and in 1997 President Bill Clinton nominated her to the U.S. Court of Appeals for the Second Circuit (6).
Sonia Sotomayor is considered to be “reliably liberal” and because she is replacing the liberal Justice Souter, the balance of the Court isn’t expected to shift much. President Obama has repeatedly made a point of stressing “empathy” in his judicial philosophy, which elevates individual experiences and relativism over original law. Remarks made by Sotomayor in 2002 seem to reflect a similar philosophy:
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging.” (7)
Another argument against Sotomayor is that she hints of having a philosophy of judicial activism. In 2005, she was on a speaking panel at Duke University Law School when she made the off-hand remark:
“All the legal defense funds out there, they’re looking for people with court of appeals experience because it is…court of appeals is where policy is made…and I know, and I know this is on tape and I should never say that because we don’t make law I know [audience laughter] … um, I, okay, I know, I know….I’m not promoting it, I’m not advocating it, I’m, [audience laughter] you know [Sotomayor laughter] okay.” (8)
A notorious case on Sotomayor’s record that comes up repeatedly is Ricci v. DeStefano, in which a white fireman filed suit against the City of New Haven, Connecticut, because of alleged racial-based discrimination. Ricci and fellow white and Hispanic firemen had scored well enough on an exam to get a promotion in the fire department, but because no African-American firemen scored high enough to pass, the city invalidated the test, thus not giving Ricci and the other firefighters the promotion they earned. When the case reached the Second circuit, Sotomayor sided with the city’s decision. (9)
But interestingly enough, Sotomayor’s stance on one major issue – abortion – thus far remains unknown. Sotomayor said that during the selection process no one asked her opinion regarding any issue that might come before the Supreme Court (10). Senator Jeff Sessions (R-Alabama) says the Republicans are preparing to give her a fair and thorough evaluation, which he hopes will be
“the most substantive, the most thorough, and the most thoughtful in memory and focused on the issues that really matter…the Senate confirmation hearings are too important to squander because only five Justices are needed to declare the meaning of our Constitution and laws.” (11)
Here are a few historical highlights of relationships between the President and the Supreme Court:
When President Franklin D. Roosevelt was attempting to orchestrate the New Deal during the Great Depression, the Supreme Court ruled that several of his social programs were “unconstitutional”. To get the conservative Court out of the way, FDR stated that the Court was “falling behind schedule” due to its aged members and requested that Congress appoint new judges for each justice over the age of 70 up to a maximum of six. Appalled at the plan and the precedent it would set, both sides of Congress rejected it.
The Supreme Court does not have authority to impeach the President. Rather, that power lies in the hands of the Senate, which is part of the Legislative branch. Alexander Hamilton wrote in the Federalist Papers No. 65 that because bringing the President to trial is a matter of “national inquest”, it is most proper for the direct representatives of the people to be in charge of such a matter.
The 2000 Presidential Election resulted in the famous toss up between candidates George W. Bush and Al Gore. When Gore challenged Bush’s victory in Florida, it soon became a legal battle which resulted in the state court calling for a recount. Five weeks after Election Day, the Supreme Court overruled the state court’s decision in a 5 to 4 vote amongst the Justices, and the Presidency was given to George W. Bush.
Sometimes the President appoints a justice that turns out to discern differently than he expected. For instance, President Eisenhower nominated Chief Justice Earl Warren, anticipating him to be a conservative judge. But Warren ended up making decisions that are said to be among the most liberal in the Court’s history, and Eisenhower later said that nominating Warren was the biggest mistake he ever made. (12)
28 out of 158 Supreme Court nominees have been rejected since the founding of the court in 1789 (13). Perhaps no nomination generated greater fury than that of Ronald Reagan’s nominee Robert Bork. Senate liberals feared that Bork’s originalist judicial philosophy would result in the overturning of Roe v. Wade, so they went on an excoriating witch hunt that even looked into his movie rentals. Though nothing significant was discovered, Bork was rejected, and the term “borked” was invented.
Written by: Amanda Read. For more articles and thoughts from Amanda check out her blog AmandaRead.com
- “The Anti-Federalist Papers and the Constitutional Convention Debates”, pg. 140. Edited by Ralph Ketcham. Signet Classic 2003.
- “Sonia Sotomayor” – Judgepedia.org http://judgepedia.org/index.php/Sonia_Sotomayor
- “Bronx judge Sonia Sotomayor would be first Latina on Supreme Court if she replaces Souter”, New York Daily News http://www.nydailynews.com/news/politics/2009/05/01/2009-05-01_president_obama_bronx_judge_sonia_sotomayor.html
- “Who is Sonia Sotomayor?” – CBS News Video http://www.cbsnews.com/video/watch/?id=5041556n
- “Division for Public Education – National Hispanic Heritage Month” American Bar Association, http://www.abanet.org/publiced/hispanic_s.html
- Federal Judicial Center, official biography of Sonia Sotomayor http://www.fjc.gov/servlet/tGetInfo?jid=2243
- “About Sonia Sotomayor” www.aboutsoniasotomayor.com
- “Opposition to Sotomayor” Judgepedia.org http://judgepedia.org/index.php/Sonia_Sotomayor#Opposition_to_Sotomayor
- “Ricci v. DeStefano” Judgepedia.org http://judgepedia.org/index.php/Ricci_v._DeStefano
- “WH contacted Sotomayor before Souter announcement”, Yahoo! News, June 4, 2009 http://news.yahoo.com/s/ap/20090604/ap_on_go_su_co/us_sotomayor_supreme_court
- “Sessions – Time needed to study Sotomayor”, AP video: http://cosmos.bcst.yahoo.com/up/player/popup/?rn=3906861&cl=13849649&ch=4226713&src=news
- “A Matter Of Justice: Eisenhower and the beginning of the Civil Rights Revolution”, pg. 92 by David Allen Nichols, Simon & Schuster 2007 Google Books Limited Preview, last accessed 06/06/09
- “Obama makes Sotomayor his first Supreme Court Nominee”, National Post http://network.nationalpost.com/np/blogs/posted/archive/2009/05/26/obama-to-announce-sotomayor-as-supreme-court-pick-today.aspx