We’ve been loosely following the Senate Judiciary Committee’s hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say “loosely” since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.
Here’s a sampling, followed by some thoughts:
- She’s Lying by Paul Campos – “Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.”
- Written testimony of Lawprof Ilya Somin (Geo. Mason University) – “As President Barack Obama has written, ‘[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.’ The protection of property rights was one of the main objectives motivating the establishment of the Constitution. Unfortunately, the Supreme Court has often relegated property rights to second class status, giving them far less protection than that extended to other constitutional rights. I hope that the Committee’s interest in this issue will ultimately help change that. The purpose of my testimony is to analyze Judge Sonia Sotomayor’s two most important constitutional property rights decisions: Didden v. Village of Port Chester and Krimstock v. Kelly.”
- A Nominee on Display, but Not Her Views by Charlie Savage (NY Times) – “Despite some 583 questions from senators amid wall-to-wall news media coverage, her hearing may prove to be as notable for what the country did not learn about her as much as for what it did. When asked what the hearings revealed about Judge Sotomayor’s legal views, the Harvard Law School professor Laurence H. Tribe, a longtime adviser to President Obama who supports her confirmation, had a simple reply: ‘Nothing.'”
The meme that “judges don’t make law, they just apply the law to the facts,” appears fairly ridiculous to anyone who has studied the Anglo-American common law system. Of course judges “make law,” especially judges who sit on courts of last resort. But the canard’s origin is not as simple as Campos argues: the result of a “campaign carried out over the last generation by conservatives toconvince Americans that ‘activist judges’ are at the root of many ofour national ills,” and that the “campaign has been based on the myth that thereare clear lines between, for example, ‘interpreting the law’ and ‘legislating from the bench.'”
A clear line does not exist, but the main disagreement appears to be more on the extremes, not at the blurry middle. Not, for example, when a judge interprets the meaning of the words in a statute, attempts to determine legislative intent, or when she applies the broad requirements of the constitution to policy questions frequently presented to courts; but rather when judges rely on the “invisible constitution” and inherent or implied rights to push the law where it perhaps needs to go, but hasn’t quite reached. Understandably, though, Judge Sotomayor — like Chief Justice Roberts before her — dutifully repeated the shibboleth: the proper role of a judge is to apply the law, not legislate from the bench.
However, we probably won’t have to wait long for her real views to be revealed. In Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the Court accepted for review a case presenting questions about the proper role of the courts, and whether they “make” law or simply “find” it and declare what it is. The first Question Presented by the cert petition asks:
TheFlorida Supreme Court invoked “nonexistent rules of state substantivelaw” to reverse 100 years of uniform holdings that littoral rights areconstitutionally protected. In doing so, did the Florida Court’sdecision cause a “judicial taking” proscribed by the Fifth andFourteenth Amendments to the United States Constitution?
In the course of answering that question, the Court will likely address whether the Florida Supreme Court “made” law when it allegedly changed the legal rules applicable to the ownership of littoral accretion, or whether it was simply declaring what the law always was. The cert petition pointed out two Hawaii cases, Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) and Sotomura v. County of Hawaii, 460 F. Supp. 473 (D. Haw. 1978) (detailed here) which addressed the question directly, recognizing that courts make law and when they change it and upset settled expectations, compensation is required and fair process is due.
If the confirmation hearings didn’t satisfy, stay tuned.