Sotomayor: Back to the Real Issue Please

Over the past week or two, it has become disturbingly clear to me that the main issue Republicans are going to be zeroing in on in their attempt to discredit Sonia Sotomayor is, unfortunately, her race. This is stemming from her now infamous quote from a 2001 lecture on law and multicultural diversity wherein she stated:

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.

Everybody and their brother is screaming that Sotomayor is a racist because of this statement, that her opinions in the courtroom are going to be weighted too heavily by her race and her experiences as a racial minority, rather than by allegiance to reason and the rule of law. As usual when an argument boils down to a matter of race, these Republicans are banging their heads against a wall, and undermining their own credibility in the process. As Daniel Larison points out:

How many conservative pundits and radio talk show hosts will wind up on the wrong side of the sweeping, unreasonably broad definition of racism that conservatives are now employing to try to trip up Sotomayor? Perhaps most telling of all, this smear on Sotomayor will not advance conservative causes one inch, but will boomerang and harm them significantly, and those who recklessly flung these charges should not be surprised if they come back to haunt them later on.

The only issue I take with Larson's statement is his classification of the people going after Sotomayor based on race as "conservatives." To my mind, a conservative bases no decision in race, and does not approach Sotomayor's qualification as a nominee to the Supreme Court with race in mind. A conservative recognizes that any judge, no matter the race or gender, will have had certain life experiences that shape his or her outlook on life, and subsequently judicial philosophy. And a conservative goes on to recognize that it is the judicial philosophy that is the important issue at hand.

Judicial philosophy is a core personal belief. Core personal beliefs drive a person's decision making process. While race and gender and personal background have doubtless played a role in Sonia Sotomayor formulating her core personal beliefs and judicial philosophy, race and gender and personal background are highly unlikely to prejudice her decision making when it comes to deciding cases. For instance, when she sat to examine Clarett v. National Football League, it is impossible to believe she asked herself what role her Latina heritage played in deciding that "We follow the Supreme Court's lead in declining to 'fashion an antitrust exemption [so as to give] additional advantages to professional football players ... that transport workers, coal miners, or meat packers would not enjoy.'"

So what is Sonia Sotomayor's judicial philosophy? This was the initial issue at hand, and it has since fallen by the wayside in the hailstorm of racial rhetoric being hurled by both the right and the left. With her confirmation hearings looming, I wonder if we might not bring the question of her judicial philosophy back to the table?

Our greatest public insight into Sotomayor's judicial philosophy has been the following video, where she discusses the fact that, in her own words, "all of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made."

Now, as Sam Stein has pointed out, there is nothing actually inherently wrong with this statement:

But for legal experts, there is nothing actually controversial to what Sotomayor said. Her political crime, if there were one in this case, was speaking the truth.

"She's not wrong," said Jeffrey Segal, a professor of law at Stony Brook University. "Of course they make policy... You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy."

To be sure, Sotomayor was not wrong. She was stating a fact, just as Segal explains. But what the issue at hand really is in this video is her attitude in saying what she says. Her cavalier demeanor in laughing off the issue of policy-making being the role of the appeals court is extremely disconcerting. It highly suggests that she believes that policy-making is what the court is supposed to do, and this is what we're looking for: judicial philosophy.

There is a very fine line when it comes to defining someones judicial philosophy. Ultimately, the appeals courts and the Supreme Court do, in fact, end up making policy through their clarification of imperfect laws. The question of judicial philosophy is whether or not a person believes that this is what the court is supposed to do; whether or not the court is supposed to be active in defining policy. The conservative believes that the court adjudicates as closely in step with the laws written by the legislature as is possible, and that if any policy stems from the decision made, it is done so reluctantly and out of no other option. The liberal, on the other hand, believes that it is appropriate for the court to legislate from the bench, to essentially affect and/or create new law through its decision making.

Conservatives abhor the idea of legislating from the bench because we believe, rightly so, that it is not the purpose of the court to create law, but to interpret the laws created by our representatives. The overwhelming recent example in the Supreme Court legislating from the bench was Kelo v. City of New London, wherein the court effectively set an egregious new precedent in eminent domain, allowing the government to take private property from one individual or corporation and give it to another, if the government was doing so because the repossession would put the property to a use that would generate higher tax revenue.

Without question, when confirmation hearings begin, Republicans will misguidedly question Sonia Sotomayor about whether or not she will allow her race, her gender and her upbringing to unduly influence her decision making. A much better line of questioning would be to ask her whether she thinks it's her job to make the law. If the answer is yes, or some rambling, stammering tap dance around the question, then she should not be confirmed. But let us please stop pretending that race has anything to do with it.