Will Sonia Sotomayor be an activist judge? The question of judicial activism — what it is and who might be guilty of committing it from the bench — is at the heart of the Senate Judiciary Committee hearings on Sonia Sotomayor’s nomination to the Supreme Court.

Republicans on the committee charged that her "empathy" might cause her to depart from the law — or dispense with it entirely — to engineer liberal outcomes.

Sotomayor denied that she’s a judicial activist, but conservatives are unconvinced. "It’s a refrain I keep repeating because that is my philosophy of judging: Applying the law to the facts at hand," she said.

What is an activist judge? Is it bad to be one? And what kind of judge can we expect Sotomayor to be? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, debate the issue.


It’s been amply documented in recent years that the term "activist judge" is more or less devoid of nutritional content: Conservatives are happy to see judges overturn laws or regulations created by the legislative and executive branches when the laws or regulations being overturned are ones they don’t like.

You can argue, though, that the purpose of the Supreme Court is to be an activist court. The questions it settles are, generally, ones where there is not a clear understanding of the law. Its job is to resolve that understanding — based on precedent and the intent of Congress, say, but sometimes based in little more than the court’s collective sense of how the law should work. And that’s true whether the court leans right or left.

Don’t expect this to happen. But it would be nice if the nomination process could result in candor from both the senators and the nominee about this kind of stuff.

It would be nice if Sonia Sotomayor could say: "I haven’t been an activist judge because that’s not really appropriate at the levels I’ve worked at previously. But as a Supreme Court justice, I will be an activist judge — if by ‘activist’ you mean that I’ll read and interpret the law giving the widest possible latitude to civil liberties and individual rights. I’ll be an activist judge like those who struck down desegregation or laws against interracial marriage — rulings where the court was clearly right, but accused of overstepping its bounds — or any other case where the political branches ran roughshod over the rights of law-abiding Americans."

It won’t happen. It would be a political disaster. But only because Republicans have succeeded in making "activist judge" a brand name to be despised. And that’s too bad.


Sonia Sotomayor is no judicial activist. She’s said so herself again and again to her Senate interrogators. She’s distanced herself or contradicted almost everything she’s ever said or written that would have given Republicans the idea she might be a judicial activist. Turns out, the empathetic, "wise Latina" is one demure jurist.

Or maybe the conservatives were on to something. The nominee and her Democratic supporters on the committee took pains to redefine judicial activism in a way that would make conservatives like Chief Justice John Roberts look like Earl Warren and Sotomayor look a model of restraint.

Muddled in the discussion was the role of judges in checking government overreach. American conservatives hold that the Constitution both prescribes and proscribes what government may do. The history of 20th century Supreme Court jurisprudence, from the New Deal on, has been about undoing the old, limited, natural-rights based understanding of the Constitution.

It’s funny to hear liberal senators speak reverentially of "fundamental rights" created by court decisions less than 50 years old. Fundamental rights don’t require a court or Congress to create them.

It’s also funny to hear senators lament that the high court would overturn its own past decisions. Would they say Dred Scott or Plessy v. Ferguson, cases that affirmed fugitive slave laws and separate-but-equal treatment of blacks respectively, were somehow holy writ? Obviously not.

Truth is, Conservatives believe that the Constitution is not some "living document" that changes with circumstance. That way tyranny lies — because it suggests that the Constitution means whatever judges do like. Reaffirming America’s founding constitutional principles isn’t activist. It’s essential.

(Ben Boychuk and Joel Mathis blog at http://www.infinitemonkeysblog.com and http://politics.pwblogs.com/.)

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