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Affirmative Action for a Judicial Activist?

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Posted On 05/29/2009 05:32:55 by Hardley

President Obama on Tuesday introduces Judge Sonia Sotomayor as his choice for the U.S. Supreme Court.

Sonia Sotomayor will most likely become the newest Supreme Court Judge. Sotomayor will be the first women of color to sit on the Supreme Court. She is certainly capable of doing the job. However, I wonder if she was the best pick for the job and if not, what the true motivations for the pick were.

Sotomayor has the chance to become the first Hispanic woman to sit on the highest court in the nation. Other candidates according to the Los Angeles Times were Judge Diane P. Wood of the U.S. 7th Circuit Court of Appeals, U.S. Solicitor Gen. Elena Kagan and Judge Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals. Looking at the candidates rap sheet they were all very qualified and capable of doing the job. But, what gave Judge Sotomayor the edge? Was it her performance history or something else?

It is quite bold and rash to claim she edged out her competiton because of the political gains Democrates would receive by appointing the first women of color to the Supreme Court. Even if it was not a political pick there a sericous political gains to be made by the nomination. The hispanic population is growing rapidly and is representing an ever larger voting base in elections.

Nevada is one state with a large voting hispanic population. Why is this relavint? Senator Harry Reid is the majority leader in the senate and crucial to getting Obama's policices passed. He is the senior Senator out of Nevada and is in danger of losing his Senate seat in the 2010 elections. In a survey for the Las Vegas Review-Journal published last week, 45 percent of Nevada voters told pollsters they would definitely vote to unseat Reid. Another 17 percent said they would consider another candidate. If Harry Reid was unseated it could prove devastating to the Obama administrations ability to pass and enact policies. There are also hotly contested seats in Arizona, California, and New Mexico that have large Hispanic populations.

The underlying means will help the Democratic Party; however, it does not mean that this was the sole reason for her nomination. She is a qualified candidate and is very capable of doing a fine job as a Justice in the Supreme Court. In the end, her ability to do the job effectively is all that really matters to me.

Tags: Politics Law Judge Court

Viewing 1 - 4 out of 4 Comments

05/30/2009 20:22:09

From: Hardley

On your first point, you can say that but I think the real reason judicial activism is not often defined is because the conservatives wish to use judicial activism without people recognizing it. However, I will grant you your definition because the definition is a mood point.

I am neither for nor against judicial activism. My point is that judicial activism has been a part of the judicial court system for better or for worse.

I don't understand how your third point refutes the argument that conservative judges use judicial activism more than well known liberal judges.

To the fourth point of what is better originalist or judicial activist. I don't believe that either area is better. If you want to follow the originalist point of view African Americans are 3/5^th of a person and women should not be able to vote. I believe the true course is to enact judicial review along with national consensus to interpret the constitution and legislative laws relation to one another.

05/30/2009 07:29:22

From: PelicanState

A couple of points. Try to follow me if you can.

1. You say judicial activism is rarely defined. I would, as a majority of ordinary Americans would, define it as rulings based on emotions and feelings, i.e., Plessy v. Ferguson, (a NOLA based case by the way) which upheld the constitutionality of racial segregation for 50-plus years. Brown v. Board of Education over turned this case. I grant you because of judicial activism, but it was also based on an originalist, literal interpretation of the equal protection clause of the 14th Amendment. "Seperate can never be equal"

2. It sounds as if you are arguing in favor of judicial activism, i.e., judges over ruling Congress and the Constitution in favor of the emotional winds of the day. For example, lower state and federal appellate judges are ruling every day against the 4th amendment which provides protection from government searches and seizures, Mapp v. Ohio. This is because cops (i.e. the government) want to do away with the 4th amendment for what they believe (emotion and feelings) is our own protection. You would surely agree that too many activist judges on the SC would lead to violations of the 4th amendment, or at least radical changes in its implementation.

3. The Yale study you cited is simply the balance of power among the three branches of government at work.

4. You didn't address judges who follow an originalist philosophy. So, the basic question to this great debate still stands. Should judges be activist or originalist?

05/29/2009 21:35:57

From: Hardley

Judical activism is a word that has been transformed by the far right wing conservative branch. Instead of using its clear and objective meaning it has become a hot word for fear mongers to describe both liberal and moderate judges.

Judical activism has led to some of the greatest achivements in the history of the United States. In 1803 judicial activism was used in Marbury vs. Madison to establish Judical Review. This would in turn give the Supreme Court legitament power. Judical activism has also been used in well known cases such as Brown vs. The Board of Education which ended segregation and Mapp vs. Ohio which declared warentless search and seizures unconstitutional.

Judical activism has also been used for conservative rulings such as Romer vs. Evans. In fact A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder indicated that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Indeed, Gewirtz and Golder found that Justice Clarence Thomas "was the most inclined" to do so, "voting to invalidate 65.63 percent of those laws." Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress, according to the study. Gewirtz and Golder also noted that the word "activist" is "rarely defined":

05/29/2009 14:05:13

From: PelicanState

Dang, sounds like you know what you're talking about.

Of course, her abilit to do the job effectively is all that really matters. But what does that mean. I'm sure she can manage her case load, manage her law clerks and coach them how she wants her opinons written.

The real question is will she be an activist judge who opines based on emotion and feelings, or is she an originalist, such as Justice Scalia, who attempts to rule based on what he thinks the founding fathers meant when they wrote the Constitution and a literal interpretation of the freedom document.

Peace

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