WASHINGTON — When a federal appeals court ruled that the Voting Rights Act did not apply to state statutes that disqualify felons from voting, Judge Sonia Sotomayor accused her colleagues of usurping the role of Congress.
“The duty of the judge is to follow the law,” Judge Sotomayor wrote, “not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created.”
“I trust that Congress would prefer to make any needed changes itself,” she added, “rather than have courts do so for it.”
Since President Obama nominated Judge Sotomayor for the Supreme Court, a ubiquitous accusation by her critics — conservative group leaders, talk show hosts, anti-abortion advocates and writers at blogs like RedState.org — is that she is a “judicial activist” who legislates from the bench.
Yet, while Judge Sotomayor has occasionally made statements outside court that conservatives find objectionable, it is far from clear that her judicial record supports the accusation that she is an activist. Several empirical studies have concluded that she is not particularly prone to overriding policy decisions by elected branches.
And her cases that have attracted the most criticism from conservatives — involving a decision to discard the results of firefighter exams because members of minorities scored poorly, a controversial property condemnation and a campaign finance law — are instances in which she deferred to policy decisions by elected branches that conservatives hoped judges would strike down.
A central problem in evaluating whether Judge Sotomayor is really a “judicial activist” is that even though the term has dominated public debate over courts for a generation, there is no consensus on its meaning.
Political scientists opt for objective criteria, saying that anytime judges strike down statutes or policy decisions by elected branches — no matter how uncontroversial their reasons — is an instance of “activism.” By that measure, several studies have found, Judge Sotomayor is a mainstream jurist.
A study of immigration appeals by Chad Westerland, a professor at the University of Arizona, found that Judge Sotomayor had upheld the executive branch’s deportation decisions 84 percent of the time — virtually the same as her court’s average.
And a continuing study of 2008 cases by Corey Yung, a professor at the John Marshall Law School in Chicago, found that her activism rate in all types of cases ranked 34th out of 52 judges. His data include five appeals courts so far.
“Over all, she is less activist than average — not by an enormous stretch, but she is basically there in the mainstream,” Mr. Yung said.
But at a recent panel discussion on Judge Sotomayor, M. Edward Whelan III, president of the conservative Ethics and Public Policy Center, faulted such scholars as not distinguishing between routine judicial “activity” and judicial “activism” — which he defined as the invention of dubious rights as a cover for wrongfully overriding elected officials.
Mr. Whelan also said there were other kinds of error besides activism, including its opposite, “judicial passivism,” when judges improperly let something stand. But Roger Clegg, president of the conservative Center for Equal Opportunity, said his definition of “activism” included judges’ upholding favored statutes or policies even though they violate someone’s rights.
By that measure, Mr. Clegg said, Judge Sotomayor is an activist. “She’s shown that she is willing to ignore constitutional protections or statutory protections in order to uphold government actions of which she approves, like campaign finance laws and like the use of racial preferences,” he said.
But Richard Epstein, a law professor at the University of Chicago who has criticized Judge Sotomayor’s votes in the firefighters and condemnation cases, said that applying the term to her was a vacuous exercise.
“ ‘Judicial activism’ tells you nothing,” he said. “The term ought to be scrapped. In today’s world it’s just a synonym for bad decisions. O.K., I’m against bad decisions, too. But you always have to explain why, and there’s no shortcut for doing that.”
In some cases, as with her felon disenfranchisement dissent, Judge Sotomayor has lauded “judicial restraint” and expressed disapproval of judges who come up with creative reasoning seemingly to achieve policy outcomes.
In a 2000 dissent in an airplane crash case, for example, she chastised colleagues as stretching their legal interpretation out of “an understandable desire to provide the relatives” of victims a larger recovery.
In a 2000 dissent in a lobstering dispute, she said the majority was advancing a “novel interpretation” and a “creative approach.” While she agreed that it made policy sense, she said it was “contrary to the plain meaning of the statute.”
And in a 2002 dissent involving the firing of a police officer who had distributed bigoted materials, she said the majority bypassed precedent and entered “uncharted territory in our First Amendment jurisprudence” because it disliked the officer’s views.
But there are also instances in her 3,000-case record in which she has been similarly criticized. In 2000, she joined a dissent that would have limited police authority to search for a suspect using race as a factor. A judge in the majority said the dissent had invented “novel equal protection theories.”
In any case, Mr. Whelan said, Supreme Court justices have a freer hand than appeals court judges. He pointed to comments Judge Sotomayor has made in speeches as evidence that she may harbor an activist mind-set waiting to be “liberated.”
“Sotomayor’s rulings present fewer demonstrable instances of judicial activism, narrowly defined, than those of some other liberal judges,” he said. “But her speeches about the judicial role and her broader record strongly suggest that she will be a liberal judicial activist” if confirmed.
Many critics point to a brief clip from a 2005 panel discussion where she said an “appeals court is where policy is made.”
But she immediately retracted her words, and a fuller clip shows that she went on to explain that she had meant to say that appellate judges think about the ramifications their decisions will have as precedents.
And in more extensive comments on that same theme in a 2000 speech, she defined judicial attention to “policy” in terms of deference to lawmakers.
Judges, she said, consider the “policy impact” of their analysis and holdings in order to avoid creating precedents that could “lead to results in other cases which cannot be squared with the language of a statute or its legislative history and purpose.”
by the new york times
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