What I Would Ask Sotomayor

So far I remain unconvinced that Sotomayor -- unlike some of her probably future colleagues on the Court, such as Stevens, Ginsburg, and Breyer -- is an "activist" judge. By "activist" I mean that the judge does what she thinks is good and right, rather than what the law says.

As I've mentioned several times before, Justice Breyer makes the case explicitly in his book Active Liberty that the Constitution's words are less important than its supposed "purpose" and whether the likely "consequences" of a law fit that intent. So, for example, Breyer can uphold a law restricting political speech -- clearly prohibited by the text and history of the First Amendment -- because the "purpose" of the First Amendment is to "promote public discussion," and a restriction on one person's speech might do so.

Literally, to these people, the words of the law don't matter, if some higher "purpose" of the law is met. Conservatives, on the other hand, tend to believe that the purpose of the law is in upholding the principle embodied by the language itself: we encourage public discussion by refusing to allow such restrictions on speech, not by relying on a judge to tell us what might and might not do so. And if that for some reason doesn't work, we collectively amend the law, rather than asking a judge to make that determination for us by ignoring the words of the law.

So I'd ask Sotomayor what she thought of Justice Breyer's short volume, and his words and their implications.

But I'd also ask what she thought of President Obama's judicial philosophy, as expressed in Audacity of Hope. In that book, then-Senator Obama criticized "strict constructionism" and its adherents. He wrote:

Some, like Justice Scalia, conclude that the Founding Fathers will tell us all that we need to know, and that if we strictly obey the rules they've laid out -- for example, that the only rights protected in the Constitution are those that are written in plain English as understood by those who wrote them -- then democracy is respected, and fairness is achieved.

Unfortunately, none of that is true. First, Justice Scalia is not a strict constructionist (few people are) but a textualist. This it not a minor semantic difference, because Obama emphasizes strict and complete adherence to the text, which is a feature of strict constructionism, but not of textualism.

Second, no one -- not even strict constructionists -- believes the Founding Fathers told us all that we need to know to preserve democracy and fairness, as even they believe it's merely a starting point, and that further amendments (such as, in particular, the 13th, 15th, and 19th amendments) may be necessary.

Finally, no strict constructionist, nor Scalia, believes that the only rights protected in the Constitution are those that are written out, because any strict constructionist will recognize the Ninth Amendment, which says that other rights may exist.

Now, President Obama's lack of understanding (hopefully his misrepresentations were not intentional) are beside the point, but they lead into something worse.

Far wose.

Obama notes correctly that Breyer is, in essence, a consequentialist ("take the practical outcomes of a decision into account", even if they violate the letter and intent of the law), but it gets worse than merely agreeing with Breyer (which is bad enough). He then writes:

The historical record supports such a theory. After all, if there was one impulse that was shared by all the Founders, it was rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. But it's not just absolute power that the Founders sought to guard against. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology, or theology, or ism ... any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the inquisition, the pogrom, the gulag, or the jihad.

There's so much wrong with this it's hard to know where to start. I'd love to spend hours picking over the utterly nonsensical notion that the Founders rejected absolute truth, when in fact the nation was founded on, and because of, the absolute truth that all men are created equal and are endowed with certain unalienable rights that government exists to secure.

It's true that some -- perhaps most -- ideologies can be dangerous, and we should not force future generations into them, let alone the current one. But the idea that man has unalienable rights that government exists to secure is not one such ideology. And it is this ideology from which conservative -- textualist, originalist, and strict constructionist -- judicial philosophy flows. It's the idea that in order to secure these rights, we must have rules, and follow those rules, until such point as they are changed, or we find they come into direct conflict with those rights.

It's not "tyrannical" to secure liberty for ourselves and our posterity, and to set up a system thatr people are "forced" into that secures those rights ... as long as they are, in fact, secured. Forcing future generartions into Social Security, or Medicare, or ObamaCare, or other such massive obligations ... that can be seen as tyrannical. Forcing them into a society where government respects their liberty isn't.

But to bring it back to Sotomayor and her hearings, I'd ask her if she agrees that some notion of a historical rejection of absolute truth or authority of any kind -- explicitly including that of the Constitution itself -- justifies a Justice ignoring what the Constitution actually says in favor of pushing for certain higher "purposes" or preferred "consequences."

I sincerely hope she would disagree with such a fundamentally irrational view as expressed by our President. She could go a long way to gaining my support by doing so.

I'd also ask her a (slightly) more practical question. She is not allowed to answer questions about cases that might come before her, so I'd pose a hypothetical similar to: if Congress passed a law saying that all women in private companies may be paid less on alternate Thursdays, would you find this law to be unconstitutional? The Constitution does not prohibit this, and this law was written later to specifically override all past laws that forbid such discrimination. So her answer would be telling: if she says she would find it unconstitutional, then that means she's putting herself above the law.