Open Letter to Sonia Sotomayor

THIS is another departure from the usual contents of this blog. It’s part of our larger concern with preserving Enlightenment values, so this isn’t too far off-topic for us.

What you’re about to read is the one question we would ask Sonia Sotomayor if we were a member of the Senate Judiciary Committee. We have no idea what questions she will be asked, but our question is the one that ought to be asked, so we’re presenting it in the form of this open letter. To wit:

Judge Sotomayor, during previous confirmation hearings, many questions have been put to nominees about how the Constitution should be interpreted. Such questions frequently use phrases like “strict construction,” “liberal construction,” “original intent,” “living document,” and “judicial activism.” Before we ask your views on constitutional construction, please consider the following excerpts from the plain wording of the Constitution and the Bill of Rights. We’ll use bold to emphasize a few portions.

Article. VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article. VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Now then, considering the oath of office that you have previously taken, and will take again if your nomination is confirmed, do you agree with the following propositions?

1. The Constitution, by its terms, is the “supreme law of the land,” and is unquestionably binding on all members of the judiciary.

2. The Constitution, in Amendments IX and X, contains its own rules of construction, and those rules are binding on the judiciary.

3. The list of rights enumerated in the Constitution is not to be construed as a complete list.

4. The list of powers delegated to the federal government is to be construed as a complete list.

5. The issue of constitutional construction is not a matter of personal choice. All judges are bound by oath to use liberal construction regarding our rights, and strict construction with respect to the federal government’s powers.

6. Anyone appointed to the judiciary must agree with the foregoing, or be deemed unqualified to hold office.

If you agree with these propositions, please say “Yes.” Nothing else is necessary. But if you disagree with any of them, please explain your reasons.

/s/ The Curmudgeon

Copyright © 2009. The Sensuous Curmudgeon. All rights reserved.

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20 responses to “Open Letter to Sonia Sotomayor

  1. The Gadfly

    Good Luck.

  2. The Gadfly says: “Good Luck.”

    I think I already know her answers. But the question should be asked.

  3. longshadow

    5. The issue of constitutional construction is not a matter of personal choice. All judges are bound by oath to use liberal construction regarding our rights, and strict construction with respect to the federal government’s powers.

    Bless, you, you decrepit old Curmudgeon — I have struggled for years for a concise way to express this exact concept, but have never found quite the right words.

    BRAVO!

  4. Longie says: “Bless, you, you decrepit old Curmudgeon …”

    It’s all part of the Curmudgeonly service. But you should really be thanking James Madison. I think those amendments were his work.

  5. Well, I’ll be danged. For decades I’ve been under the impression that it was Rhenquist who likened the IX’th to an inkblot. Actually it was Bork. Furthermore his reasoning was not entirely specious.

  6. I moved the publishing date of this post forward in time a few hours (same date), so that it would appear first again. Somehow it didn’t get the attention that I thought it deserved. The URL remains the same, I think, so if anyone linked to it their links should still be good.

  7. “Gesundheit! “

  8. longshadow

    I moved the publishing date of this post forward in time a few hours (same date), so that it would appear first again.

    Your wretched finger on the scale, yet again, eh?
    ;-)

  9. Longie says: “Your wretched finger on the scale, yet again, eh?”

    Yeah, it’s all smoke and mirrors around here. Pay no attention to that Curmudgeon behind the curtain.

  10. Benjamin Franklin

    Where the hell is Soto, and why would we want to put it’s Mayor on the Supreme Court?

    But seriously, take an example such as school integration. Doesn’t the 14th ammendment require states to comply with federal law?

    Would you consider Brown v. Board of Education to be judicial activism?

  11. Benjamin Franklin asks: “Would you consider Brown v. Board of Education to be judicial activism?”

    I haven’t thought about it for years. Technically, education is a state issue. However, the 14th Amendment applies. The relevant part says:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    I don’t know the prior history of the term “equal protection,” and the court may have been stretching, but I don’t doubt that segregation laws were a denial of equal protection, and were thus unconstitutional. So Brown was correct. I’m told that the opinion has technical flaws, but it’s too much work to dig into that. My quick answer to your question is “No.” That case wasn’t judicial activism. (But living in the South, it seemed so at the time.)

  12. Benjamin Franklin

    The Curmudgeon said-
    “My quick answer to your question is “No.” That case {Brown v. Board of Education} wasn’t judicial activism. (But living in the South, it seemed so at the time.)”

    Would you agree that if Brown v. BoE had been decided in 1790 that it would have been deemed judicial activism?

    What about if it had been decided in 1860, after passage of the 14th amendment, and the ruling in Dred Scott v. Sanford?

    It seems that in your response you indicate that the perception of judicial activism is, at least in part, based upon chronological and geographical issues as well as strict Constitutional interpretation.

    If that is the case, what is the difference between that decision, and cases being decided today, which, at this time are perceived by many as judicial activism, such as equal protection based on sexual preference, or fetal rights?

    I would posit that interpretation of the Constitution must be fluid and flexible, as the world in which we live in 2009 is not the same world as that in which the founding fathers lived in the 18th century. Further, the cases some deem to be judicial activism today, may not be so similarly judged fifty, or a hundred years from now.

    What say thee, oh good Curmudgeon?

  13. Benjamin Franklin

    Please pardon my spelling.

    chronologial s/b cronological and interpretaion s/b interpretat.

    .

    Do you what DNA stands for?

    National Dyslexic Association.

  14. Benjamin Franklin

    yeesh – I should have stayed in bed!

    chronological

    interpretation

    there!

  15. Benjamin Franklin says:

    I would posit that interpretation of the Constitution must be fluid and flexible, as the world in which we live in 2009 is not the same world as that in which the founding fathers lived in the 18th century. Further, the cases some deem to be judicial activism today, may not be so similarly judged fifty, or a hundred years from now.

    I didn’t want to get into a discussion of this, but having responded once, I’ll do so again, but only this one more time. I’m only talking here about segregation laws and the 14th Amendment’s equal protection provision. (I won’t discuss or encourage discussion of the other topics you mentioned — abortion, sodomy, etc., because I can’t stand the behavior of either side in such debates.)

    You raise a good point as to whether segregation was at one time thought to be constitutional, but because of judicial activism and belief in a “living constitution,” the tyrannical justices in Brown changed the law on their personal whim.

    My take on it is that the North understood exactly what they were doing at the time the 14th was adopted. The South understood it too. The meaning of the 14th hasn’t changed at all. But everyone understood that the political climate then prevailing wouldn’t tolerate a full-blown implementation. There was also a shameful compromise to resolve the Hayes-Tilden election which affected implementation of the 14th. It was agreed that the feds would tolerate the peculiar folkways of the South — lynchings and all. Considering how the Army behaved out west after the Civil War, it appears that both sides were a bit insensitive to racial justice.

    So they “kicked the can down the road,” expecting that in a few more generations, the full meaning of the 14th would be enforced — or not, as the future might decide. And it has been enforced. Excessively so, in my humble opinion, in instances of reverse discrimination, busing to achieve numerical perfection, etc. Those abuses are indeed examples of judicial activism, because — unlike the Brown decision — they go way beyond the plain meaning of the 14th.

    Back to your question — the concept of striking down segregation laws isn’t a wildly new understanding of the 14th, based on a “living document” interpretation. The 14th was always understood. It’s the times that have changed, not the Constitution. (And with this comment, I’m dropping the subject.)

  16. retiredsciguy

    Curmy,
    This is beautifully stated. You should post it fresh every day until confirmation hearings are over.
    I an concerned by the calls for “empathetic judges”. Should baseball umpires also be empathetic, narrowing the strike zone in favor of the .150 batter?

  17. retiredsciguy says:

    I an concerned by the calls for “empathetic judges”

    A judge with “empathy” for a particular group will doom that group to eternal poverty. A banker wouldn’t lend to anyone in Group X if the Supreme Court says that people in Group X must always win in court. No one could make a contract with an X or even hire one for the same reason. Group X would be economic pariahs. Of course, Barney Frank could step in and require that people deal with Group X, but that would create even more problems than we have now.

  18. retiredsciguy

    Curmy writes,
    “A judge with “empathy” for a particular group will doom that group to eternal poverty. ”

    You make a very good point. Why can’t the well-meaning politicians see this unintended result?

  19. longshadow

    You make a very good point. Why can’t the well-meaning politicians see this unintended result?

    Because they don’t mean well, and the result IS intended.

    More specifically, the object of the exercise isn’t to help the helpless, but rather to perpetuate helplessness, and in so doing create a permanent underclass of helpless who are perpetually in need of their political benefactors to hand them “goodies” and right the wrongs, perceived as well as real, that inevitably seem to befall them.

    Just as drug dealers will happily give free samples to new users — to get them hooked for life on their product, politicians who traffic in “identity politics” are all-too-eager to hobble the upward economic mobility of their helpless constituents, always under the auspices of “leveling the playing field.”

    Like the drug dealer, all the the identity-politics/class-envy pols are really interested in is lifelong constituents for their product, and they don’t care in the least if they turn them into helpless mind-numb addicts in the process.

    Just say “NO” to Bail-out Nation.

  20. Benjamin Franklin

    Nice discussion.

    Thank you.