13 July, 2009

Sotomayor confirmation hearings

Besides the pleasure of seeing Senator Franken performing his first official duty, watching CNN today I've been struck by the non sequitar-ness of the Sotomayor hearings and the surrounding chatter. The controversies dominating the questioning just don't seem to bear much relation to the actual legal challenges inherent in interpreting the Constitution. The main point of contention has been about "activist" judges, which has long been a conservative code word meaning "judges that see in the judicial system and the Constitution an inherent authority to uphold certain minority rights that have been circumscribed by majoritarian legislative actions". But since that argument orginated in the now-discredited attempt to indefinitely deny African Americans equal status under law, we get a euphamistic debate over "activist" versus "non-activist" judges.

But that distinction doesn't really make any sense. The purpose of the Supreme Court is to review the laws we make, and every judge will find some things unconstitutional and others not; that is, every judge will be an "activist" on some issues and not others according to her interpretation. Sotomayor is a case in point: conservatives are angry at her appellate decision in the Ricci case because she upheld existing precedent. Conservatives wanted a more activist decision, and they got one when the case went before the Supreme Court. But the debate still goes on under the pretense that conservatives are against "activism" and progressives must defend themselves from the charge of playing fast and loose with the law.

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