slimy judge roberts

The Senate Judiciary Committee's hearing has opened with hours of mostly self-service statements by senators before we will hear a word form Judge Sotomayor.

The most compelling statement in the morning round came from Sen. Sheldon Whitehouse (D-R.I.) While a transcript of his statement was not available at this writing, he made similar remarks on the Senate floor last week.

Here is an excerpt from his July 9 speech in which he notes Chief Justice John Roberts' striking tendency toward "making law," which is supposedly a big Republican no-no.

Sen. Whitehouse:

My Republican colleagues like to suggest that judges appointed by Republican Presidents are neutral "umpires" and that judges appointed by Democratic Presidents are judicial "activists." But Chief Justice Roberts himself, who indeed raised the "umpire" metaphor at his own confirmation hearing, reveals the falsity of that comparison. Jeffrey Toobin, a well-respected legal commentator, recently described a pronounced ideological predisposition in Chief Justice Roberts.

In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

Let me say that again: In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

Maybe this is a pure coincidence, and maybe it is a further coincidence, to again quote Toobin, that this record "has served the interests, and reflected the values, of the contemporary Republican Party." And maybe it is also a coincidence that in the Heller decision, the DC gun law case, the Roberts-led conservative bloc of the Court discovered a new constitutional right that had previously gone unnoticed through 220 years of the United States Supreme Court's history, and which just happens to appeal to the NRA and the Republican base. Perhaps that is all a coincidence. But I will confess to you, I doubt it. I think that this record goes a long way towards disproving the metaphor of the Republican judge as neutral umpire.

So let's put aside the notion that conservative men from the Federalist Society have no predispositions in legal matters but that anyone who differs from their views is the activist. That is just rhetoric, and what it's seeking to do is to normalize the right-wing activism the Republican Party has calculatedly and over many years moved onto our Court.

If you want to decide whether Judge Sotomayor has an appropriate judicial philosophy, look at her full record. Throughout her long career as a federal judge - longer than any Supreme Court nominee since the 19th century - Judge Sotomayor has, on every major issue, shown that the facts and the law drive her determination of cases. On the Second Circuit, Judge Sotomayor agreed with her more conservative colleagues far more frequently than she disagreed with them. In 434 published panel decisions where the panel included at least one judge appointed by a Republican president, she agreed with the result favored by the Republican appointee in 413 cases. 413 out of 434. That is 95 percent of the time, and it is no record of extremism. Indeed, it would seem to put her on the conservative side of the mainstream. And consider what she told Chairman Leahy: "Ultimately and completely, as a judge, you follow the law. There is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law."

Furthermore, the idea that because the Supreme Court disagreed with Judge Sotomayor's Second Circuit panel decision in Ricci v. Stefano, she is somehow outside the mainstream, is patently absurd. First, four justices of the Supreme Court agreed with the Second Circuit's interpretation of the law. Are Justices Stevens, Souter, Ginsburg, and Breyer outside of the mainstream? Hardly.

Second, Judge Sotomayor and her panel were faithfully applying the settled precedent of the Second Circuit when they rendered their decision - just what a circuit court judge of the United States is supposed to do. The five justices on the Supreme Court in the Ricci majority, in deciding the case, invented an entirely new test for resolving Title VII claims that, according to legal experts reported in the New York Times, "will change the landscape of civil rights law." It is hardly fair to criticize Judge Sotomayor for not applying a test that did not even exist when she decided the case. Nor for failing to venture into landscape changes of civil rights law.

In the Ricci decision and others, Judge Sotomayor's record demonstrates a long career of faithfully applying the law to the facts of the case before her - and the careful exercise of judicial discretion.