Supreme Court justice nominee Sonia Sotomayor has received preliminary approval by the Senate Judiciary Committee to be confirmed despite the intense scrutiny during her Senate confirmation hearings last week. While her confirmation seems all but inevitable when the floor vote takes place next week, there are many subtleties about the recent hearings that will set the standards for future Supreme Court nominees. This is particularly significant since it is extremely likely that Justice Ruth Ginsberg will likely be following the path into retirement as well, giving President Obama the opportunity to appoint an additional justice during this term.
There is a lot of talk about the “ideological balance” of the Supreme Court. This balance ensures that any no major changes in judicial policy will occur. In other words, the three hot button issues (guns, abortion, and gay marriage) will remain at the status quo. In the current hearings, many people are paying close attention to remarks that Sotomayor made during a speech in 2001 that insinuated that a “wise Latina” could draw better conclusions in the judicial system than a “white male.” Sotomayor insisted during the hearings this week that this statement was merely a “rhetorical flourish that fell flat,” and she only intended to inspire young Hispanics that their life experiences can add value to their professional careers. The problem with this type of remark coming from a judge is that the traditional view of the primary role of the judicial branch is to interpret the law objectively. To suggest that the Constitution can be interpreted through the framework of personal experience suggests a much more arbitrary approach to the Supreme Court’s role. As the nation’s highest court, this is certainly a troubling suggestion.
Realistically however, it doesn’t seem that any amount of questioning will delay the confirmation of Sotomayor. With the judiciary committee’s 13-6 approval of Sotomayor on Tuesday, the floor vote next week should be only a formality in the Democrat-dominated senate. As the first Hispanic and only the third woman to serve on the Supreme Court, Republicans have had to show restraint in their opposition to Sotomayor. Republicans have struggled in recent years to win the majority vote in broad elections, which has been evidenced by the shift in the balance of power in both the House and the Senate over the last four years. Specifically, the Hispanic vote, which is traditionally more Democratic to begin with, has left the Republican Party in droves.
One bit of history that some people are largely unaware of is that both retiring justice David Souter and Sonia Sotomayor were appointees of former president George H. W. Bush. Souter was nominated by the elder President Bush on July 25, 1990 and confirmed a few months later on October 9 in a 90-9 vote. Ironically, Ted Kennedy and John Kerry opposed Souter’s nomination saying that he was a conservative “right-winger” and was similarly opposed by the National Organization for Women and the NAACP. In reality, Souter proved to be one of the most liberal judges in modern Court history, almost always siding with the liberal majority. Sotomayor was nominated a year later by President Bush for the US District Court for the Southern District of New York and confirmed in 1992. The fact that both Souter and Sotomayor were both nominated by President Bush, who was clearly a conservative, has raised some objections from both Democrats and Republicans that opposition from senators like Jeff Sessions and Charles Grassley is nothing more than grandstanding for their own political gain.
Grandstanding or not, it is important to be aware of what is happening in the Supreme Court. A Supreme Court justice serves for life, so it is important to understand how their views will shape future judicial policy. While Sotomayor might not be the vote of change on issues like abortion, gun control, and gay rights, her potential toward “judicial activism” could potentially be a disturbing trend. As a good citizen it is important to ensure that our justice system is based on the Constitution and legal precedent, not the experiences of the individual. In the months ahead you can expect to see even further scrutiny in Sotomayor’s judicial decisions as she takes her place on the Court. However, if history is any indication, the controversy will soon fade and we will be back to the usual drum of politics in Washington surrounding healthcare, national security, and our troops in the Middle East.
Image credit: Office of U.S. Senator Patrick Leahy
Dave Baldwin is a businessman, musician, and divorced father of two boys. They live together in El Paso, TX.