Sessions: Opposing View: A Confirmation Conversation
Opposing view: A confirmation conversion
Nominee lacks deep convictions needed to resist judicial activism.
By Jeff Sessions
Elections have consequences: President Obama's first nominee to the Supreme Court, Judge Sonia Sotomayor, will likely be confirmed.
But supporters of liberal judicial philosophy might find it a Pyrrhic victory. During three days of careful questioning, Judge Sotomayor renounced the pillars of activist thinking.
She rejected the president's "empathy standard," abandoned her statements that a judge's "opinions, sympathies and prejudices" may guide decision-making, dismissed remarks that personal experiences should "affect the facts that judges choose to see," brushed aside her repeated "wise Latina" comment as "a rhetorical flourish," and championed judicial restraint.
Judge Sotomayor's attempt to rebrand her previously stated judicial approach was, as one editorial page opined, "uncomfortably close to disingenuous."
Why not defend the philosophy she had articulated so carefully over the years?
Because the American people overwhelmingly reject the notion that unelected judges should set policy or allow their social, moral, or political views to influence the outcome of cases. Rather, the public wants and expects restrained courts, tethered to the Constitution, and judges who impartially apply the law to the facts.
In the end, her testimony served as a repudiation of judicial activism.
But pledging "fidelity to the law" and practicing judicial restraint are different things. Which Sotomayor will we get?
At the hearings, which were praised for their substance and respectful tone, we looked closely at the record:
-- Her 2006 private property decision permitted the government to take property from one developer and give it to another.
-- Her 2008 Ricci decision allowed a city to discriminate against one group of firefighters because of their race. That ruling was recently reversed by the Supreme Court.
-- Her 2009 Second Amendment decision would give states the power to ban firearms.
These rulings have three things in common. Each was contrary to the Constitution. Each was decided in a brief opinion, short on analysis. And each was consistent with liberal political thought.
I don't believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent.
Sen. Jeff Sessions of Alabama is the ranking Republican on the Senate Judiciary Committee.
Posted at 12:21 AM/ET, July 27, 2009 in USA TODAY editorial Permalink
http://blogs.usatoday.com/oped/2009/07/ ... ssion.html
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