Sotomayor: Identity Politics and Legislation from the Bench

I’m generally opposed to the idea of judges legislating from the bench — but I’m not an absolutist about it.  Brown v. Board of Education could be described as legislating from the bench, but I think the ruling was necessary and appropriate, and in fact a proud moment in American history.  Over the following decades, judges not only legislated from the bench in support of Brown, they in some cases took over the administration of school districts to enforce integration.  There might be valid arguments against this busing order or that forced redistricting, but in general I think the judiciary was taking (appropriately) extraordinary steps to overcome extraordinary defiance by segregationists.

Roe v. Wade is more complicated for me. I’m in the Clintonian “safe, legal and rare” camp, generally opposing most restrictions on access to abortion — so in that regard, Roe v. Wade has brought America about to where I want it to be.  But I wish we had gotten here through legislation rather than through judicial activism, and the Roe decision is utterly indefensible from a separation of powers perspective.

Via GayPatriot, the half-minute video above tells you all you need to know provides troubling evidence about where Supreme Court nominee Sonia Sotomayor stands on judicial activism:  She thinks the appeals courts are “where policy is made.”  She acknowledges that the Framers didn’t see it that way, but she clearly is untroubled by the idea of judges in policy-making roles.

As for identity politics, Obama apparently only considered women for the nomination.  I was rooting for a different Princeton graduate — rather than Sonia Sotomayor ’76, I was hoping for Elena Kagan ’81, with whom I worked on The Daily Princetonian before she went off to become Dean of Harvard Law and now Solicitor General.  But seriously, I’d rather see nominations made on the basis of qualifications rather than identity.  (In that regard, Sotomayor is a stronger pick, with more than a decade on the Court of Appeals.)

As GayPatriot also notes, it would be outrageous for a male jurist to make this statement:

“I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Hispanic woman who hasn’t lived that life.”

But Sotomayor has said exactly that — just reversing the roles of the “wise Latina” and the white male.

I expect she’ll get confirmed, unless some skeleton is found in her closet.  But 29 Republican senators voted against putting her on the Court of Appeals, and that number no doubt will rise this time around.  I just don’t understand why it seems to be only Republicans who care about Constitutional separation of powers.