Empathetic activist or dispassionate interpreter?

Empathetic activist or dispassionate interpreter?

No doubt the phrase “judicial activist” will be getting a workout in coming weeks as the Senate goes through the confirmation process for President Barack Obama’s first nominee to the Supreme Court of the United States.

Perhaps the most important thing to remember about activism is that it attacks the law from both sides, the right and the left. When a court rules in favor of abortion rights, protections against self incrimination, gender equality or orders for crosstown busing to integrate schools, liberal activist judges are blamed. When it overturns campaign finance reform or gun control laws or says that affirmative action programs violate the Constitution, conservative activist judges are at fault.

Eye of the beholder

Activist judges, it appears, are judges who seem to go out of their way to reach a conclusion with which someone disagrees. The level of disagreement determines just how activist the judge can be.

In fact, judges on either side of the political spectrum have shown themselves to be activist to the extent that they are willing to overturn laws enacted by a democratically elected legislature, to ignore established precedent and to stretch the clear language of the Constitution or a law to arrive at a desired end.

It is a safe bet that many Republicans will be describing Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals as a liberal activist, few Democrats will join the chorus.

Obama said she met his two basic criteria, intellect and a “recognition of the limits of the judicial role. ... A judge’s role is to interpret, not make law.” Conservative commentators scoffed.

Sotomayor, a 54-year-old graduate of Princeton and of Yale Law School, would be the first Hispanic justice and second woman on the Supreme Court if she were confirmed. She’d replace Justice David Souter, who is retiring. Like most of those already on the court, she is an Ivy League product, a Catholic and has appeals court experience. As a solid liberal voice on the New York-based 2nd Circuit, she would be in the minority on this court, which is the product of Republican presidents nominating justices for 28 of the last 40 years.

The empathy issue

If there’s going to be a word bandied about more than activism, it will be empathy, something Obama said he would value in court nominee. A few years ago, when Justice Clarence Thomas argued forcefully to sustain the conviction of two men who had put a burning cross on the lawn of a black couple in Virginia, his ability to empathize was praised by many of his colleagues. Some in Congress appear to now find empathy to be an undesirable trait in a justice.

The simple truth is that no nominee is going to appeal to everyone: any nominee will have detractors and supporters. One of President George W. Bush’s nominees was forced to withdrawal after being attacked by members of his party.

But a president can be expected to nominate justices who are on the same political page as he, and the Senate has a responsibility to fairly examine the nominee’s qualifications. The only sitting justice to face a close vote is Thomas, who was confirmed in 1991 by a vote of 52-48 following a contentious hearing process. Absent a blockbuster revelation in days to come, the vote on Sotomayor’s confirmation isn’t likely to be nearly as close as that of Thomas or as much of a landslide as the 97-3 vote for Ruth Bader Ginsburg in 1993.