Is Sotomayor an Activist? Give Me a Break.

July 16, 2009

Years ago I tried a case on behalf of Denver’s nurses in the federal district court in Denver.  The trial judge’s mother had been a nurse and expressed great sympathy for our pleadings. The judge also had a prejudice against the city attorney’s office. That should have worked for me too. But the judge also had two more prejudices: he was against civil rights laws and had never in all his time on the bench decided a case in favor of a civil rights plaintiff.  Also, he thought women should be paid less than men because they interrupted their careers and had babies. His prejudice was buried but it was not buried very deep.

One time I tried a case in front of a black judge impugning the authority of a black police officer.  As soon as I questioned the integrity of that officer, that judge left me out of his sense of justice.  Another time I tried a case to integrate Denver’s schools and we ended up in front of a liberal judge who decided in our favor. Then we went to the Tenth Circuit Court of Appeals in front of conservative judges who did not believe that white people discriminate. We won in front of the liberal judge and lost in the court of appeals. When we got to the Supreme Court of the United States Justice Thurgood Marshall was on the court. So was William Brennan. We won.  Unlike the judges on the Tenth Circuit both had lived in environments filled with racial prejudice. They ruled to integrate Denver’s schools.

Now comes Senator Jeff Sessions of Alabama who asks Judge Sonia Sotomayor to apply the law and not let her personal opinions affect her decisions. What universe does he come from? The law is not some marble carving on the shelf that a judge simply memorizes and recites. Cases don’t come to court if they are easy. They come because they are unclear, difficult, bring new issues on the borderlines of established law. And when they are unclear, as they usually are on appeal, it is up to a judge to apply precedent, of course. But no two cases are the same, and so a judge, any judge, will apply all of his or her life experience, all of his or her wisdom, all of his or her sense of justice, to understand what the precedents mean.

Last month the Roberts voted to throw out employment law that had been precedent for the last 30 years. In another decision he wrote that no matter what Congress thought he thought that racial prejudice was probably gone from the South and that he was ready to emasculate the Voting Rights Act.

The Roberts court is making law every session. That is activism.

For senators to badger Judge Sotomayor as if she would be different than any other judge cannot be for judicial reasons. It has to be for political reasons. And Judge Sotomayor knows that too. So she is demure as if to only “apply the law” were as real as motherhood.

I dearly wish she would sit up straight and say to those senators, get real. You know that a judge is a human being. You know that the due process clause is an application of reason and fairness and that American constitutional law is deeply rooted in due process. You know that what is reasonable and fair to one person from Texas cotton country may not be reasonable and fair to a person from the ghettos of Harlem. You know that what is reasonable and fair to a senator from Alabama who was once rejected from the bench because of his racist views—like Senator Jeff Sessions—will certainly not seem reasonable and fair to a woman who was raised in a racist city environment and had to overcome all the prejudices of that society around her.

Judge Sotomayor is probably going to win approval because she is playing it safe. But there is no reason for all those senate democrats to play it safe. There is no reason for them not to cry out, over and over, how many times Chief Justice Roberts has been an activist judge, overruling precedents right and left.  There is no reason not to cry out that Bush v. Gore was the most stunning activist intervention in American politics of any Supreme Court in our history.  There is no reason not to be real. A court is only activist if you disagree with it.