This morning dawned with the Obama administration’s announcement of his nominee for Justice Souter’s replacement. The well-managed leaks from the West Wing made sure Sonia Sotomayor’s name was already familiar in the press, but commentators have found plenty to discuss on air anyway. It seems the old partisan battlelines are being drawn, though as some have said (including our very own Dr. John Mark Reynolds), the GOP would be wise to save its limited political capital for another fight. There will be plenty of those!
Judge Sotomayor is a brilliant choice for Obama’s first nominee to the Supreme Court. Though many on the Right will try to paint her as a radical liberal loose constructionist, her record shows Sotomayor is an experienced, methodical judge who painstakingly examines the intricacies of the law. While she enthusiastically advocates an interpretation of the law that promotes equality in cases of race and gender discrimination, her ruling from the bench has demonstrated her work as a jurist who considers each case on its own terms. She has frequently left idealism aside in order to reach a decision that accurately applies the principles of the law.
A lot will be said about comments Judge Sotomayor made at a 2005 panel discussion at Duke University Law School, which have been circulating on YouTube ever since her name was mentioned in a pool of likely candidates for nomination:
All of 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. I know this is on tape, and I should never say that, because we don’t make law, I know. [The audience laughs.] OK, I know, I know. I’m not promoting it, I’m not advocating it, I’m, you know. Um. OK.
It lacks eloquence, as off-the-cuff remarks often do, and seems to advocate unbridled judicial power. The trouble with using this statement to prove Sotomayor is a radical revisionist who legislates from the bench is twofold. First, her record simply doesn’t show that’s the case. Second, it’s just a little civics 101. Someone, usually the White House, proposes policy. Congress enacts legislation to put that policy in action. The Executive Branch, usually the bureaucracy, executes that policy. But in the policymaking process, the courts determine what the law says. That interpretation determines what the policy looks like in practice. Instead of fearing a radical jurist, we should be delighted that a nominee to the Supreme Court recognizes that power and, so far, has cautiously exercised that power. Let’s hope for a quick confirmation full of excellent debate over constitutional interpretation!
Of course, the more exciting judicial news of the day came around 10am Pacific time from the California Supreme Court. In a six-to-one majority, the Court upheld the voter-approved ballot initiative to ban gay marriage, Proposition 8. Immediately upon receiving the news, scores of protestors crowded the streets of San Francisco and other California cities, railing against the blow to human rights and calling the justices all manner of names.
Regardless of where you stand on gay marriage, however, you have to accept the legality of the situation. The California Supreme Court wasn’t asked to rule on gay marriage at all. In fact, its previous ruling on the subject, In re Marriage Cases in June of 2008, overturned voter initiative Proposition 22, a 2000 ballot initiative that defined marriage as the union of a man and a woman. Likewise, the 2008 ruling precipitated Proposition 8, which amended California’s constitution to prevent same-sex marriage. The question before the Court for today’s decision was simply whether or not the Constitution had been legally amended by voter initiative. Was it an amendment, which the California constitution allows voters to determine in general election, or was it a revision, which is a legislative matter?
The question came to whether or not Proposition 8 was presented to voters in the right form, and whether or not it substantially changes the constitution’s equal protection provisions. The Court decided today not for or against gay marriage, but that the authors of Prop 8 had done their homework while drafting the amendment. Unfortunately, it was not in the Court’s jurisdiction to decide whether or not it’s idiotic to allow 50.1% of voters to substantially amend the state’s constitution.
Gay marriage proponents vow tonight that the fight isn’t over. For now, in California, it seems it may be. Much more substantial changes need to be made to the method of constitutional amendment, or a small percentage of the electorate must be convinced to overturn the amendment in the next election for anything to change. After all, Prop 8 passed by a margin that was hardly decisive. But even then, the fight won’t end here. Ultimately, gay marriage is a federal issue, and must be decided by the Supreme Court. It is the ‘full faith and credit’ clause, not any lingering moral code set forth by the Framers that pushes the argument into the Supreme Court’s jurisdiction. And, it seems with the recent action on the issue in Iowa, Washington D.C., New York, and elsewhere, we won’t be able to ignore the federal battle for much longer. The state initiatives are just a prelude to the moral conversation we must have on the issue. Its outcome will determine who we are. ‘