July 29, 2009

JUDICIAL ACTIVISM V. EQUAL JUSTICE BEFORE THE LAW

Guest opinion submitted by Idaho Senator Mike Crapo

Recently, we had the opportunity to watch the Senate Judiciary Committee's hearings regarding Sonia Sotomayor, President Obama's nominee for the U.S. Supreme Court. I had the opportunity to meet with her, and found her to be an enjoyable, personable individual.

Judge Sotomayor has led a distinguished career and demonstrates one of the greatest things about America-the opportunity to become whatever you want with hard work and God-given abilities. However, after studying her positions and carefully considering her testimony, which was often evasive and contradictory to her own previous statements, rulings and writings, I have concluded that I cannot vote to confirm her to a lifetime appointment on the U.S. Supreme Court.

In Maloney v. Cuomo, Sotomayor wrote that the right to bear arms is not a "fundamental" right and that the 2nd Amendment does not apply to states. This ruling came after the Supreme Court ruled, in District of Columbia v. Heller, that individuals in the District of Columbia have an individual right under the 2nd Amendment to keep and bear arms. Even the 9th Circuit Court of Appeals, which has jurisdiction over Idaho, has ruled that the 2nd Amendment is binding on states as well as the District of Columbia. If Sotomayor is confirmed and her Maloney decision is upheld by the Supreme Court, the vast majority of Americans, including Idahoans, would not have an individual right, enforceable in the states as well in the District of Columbia, to bear arms under the 2nd Amendment.

She has also stated that U.S. judges may look to foreign law to interpret the U.S. Constitution and the laws of the United States. Aside from being self-evidently unconstitutional, looking selectively to foreign law is also an excuse to implement a judge's personal policy preferences. The U.S. Supreme Court is charged with deciding the constitutionality of a law, or interpreting it in the context of our American system of justice, not its accordance with selectively chosen foreign laws, which are numerous, contradictory, and often inconsistent with American jurisprudence. How else would a judge choose among them other than selecting those that align with a judge's personal opinion?

She has also indicated that her experiences will affect the facts she chooses to see as a judge. This is simply shorthand for judicial activism and making policy rather than applying the law. To defend against this very notion, however, justice is supposed to be blind---indeed, Lady Justice is depicted with a blindfold. To judge by selectively choosing which facts to emphasize is to lower the blindfold and peek, thereby rejecting equal justice before the law. Those who are called to judge must adhere to the rule of law, no matter what they personally think the law, policy or outcome should be.

The U.S. Supreme Court has directly reviewed ten of Sotomayor's decisions, and eight of those have been reversed or vacated. The Court reversed her recent decision in Ricci v. DeStefano, which upheld a decision to throw out a test for hiring firefighters because too few minorities passed. This case depicts the arbitrary selectivity of judicial activism. The firefighters who worked hard to pass the test did nothing wrong, yet were denied equal justice.

I take the responsibility of confirming Supreme Court justices very seriously and my decision was not reached lightly. Judges take an oath to "administer justice without respect to persons, and do equal right to the poor and to the rich." Given my review of Sotomayor's record, I question whether she would abide by this standard and must vote against her nomination to sit on the highest court in our country.

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