Sotomayor should be confirmed

[Note - I penned this weeks ago but reserved it for her confirmation hearing.]

I want to make this as plain and clear as I can. Judge Sotomayor should be confirmed in a unanimous vote by the Senate; and, should not have been forced to respond to the kind of scrutiny and attacks (both personal and professional) which followed her nomination. Does that opinion surprise you? It shouldn't.

Since her nomination, my political party has taken aim at her on three main issues. First, she has spoken publicly about the fact that her Latino heritage and her gender have impacted the thought processes which affect her role as a judge (both on the trial and appellate levels). Second, decisions which she authored or joined have been overturned roughly 50% of the time. Third, she once spoke publicly about the fact that judges "make policy" from the bench (yes, I've watched the video).

So what?

Who among us hasn't been significantly shaped and affected by our own heritage? Who among us doesn't perceive our personal and professional life through the lens of our own past? I assume that by her "wise Latino" comment she simply meant that (perhaps) being part of two different minority groups causes her to be more sensitive than others to issues affecting those who have typically and historically experienced discrimination at the hands of those in power. "Sensitive to" doesn't mean necessarily "biased in the favor of." I choose to believe it means nothing more than "being watchful" of any intentional or unintentional miscarriages of justice towards a minority. Why would a nation that vigorously tries to protect the rights of the least minority have a problem with that?

I do not assume that she intentionally tailors her judicial opinions based on any racial or gender bias (and, yes, I have read some of them). My status as a Christian, conservative, white Anglo-Saxon male has also undoubtedly affected the way that I see the world. My background and life experiences have colored the lens through which I perceive events and issues. That is simply human nature. We are not robots, computers or simple mechanisms of logic. Were I a judge, I would be foolish to ignore that truth. In fact, it would be irresponsible of me not to remain cognizant of it. Keeping that truth on the table should cause me to be overly cautious in every case to make sure that my "background" didn't subjectively affect my judicial acts and opinions. They're two sides of the same coin; and, I choose to assume that every judge takes this into consideration on their way to achieve a fair and just decision. I may think differently as a trial attorney from time to time; but, as an American I must continue to believe that.

Regarding her appellate record, make nothing of it. If a judge follows the existing law, an appellate court can decide it wants to change the law. That results in a reversal; but, it does not equal any kind of admonition or criticism of the prior judge. I'm not saying that has been the case in all of her decisions; but, simply referring to a "reversal rate" is a hollow criticism (and her opponents know better).

As to the statement regarding "making policy from the bench," I have two thoughts. First, as a lawyer (and a self-styled student of American constitutional history and policy) I firmly believe that judges should not "make policy" from the bench. Our system of government specifically excluded the judiciary from that process, reserving it entirely to the province of the legislative branch. The simple reason for that was the fact that "we the people" elect our legislators but not federal judges. Passing laws is "making policy." Should the legislature pass a law with which "we the people" disagree, we retain the power to vote them out of office (and, thus, seek a change in that policy). That's one of the critical components we speak of when we so easily utter the phrase "separation of powers."

At the same time, all of the non-lawyers need to understand that this division of power hasn't been honored for at least 70 years now. Long ago our nation diverged from this way of doing things. In the meantime, nobody has found a way to revert to the original framework. Also, and most importantly, both political parties have benefited from and taken advantage of that development. Democrats and Republicans alike have used that fact to enact "policies" which they couldn't otherwise accomplish in Congress. Nobody should kid themselves about that.

That being the case, today we live in a country that develops "policy" in two ways. The first is via Congress. The second is via the Supreme Court. When the political ideology of the two are in sync, the process is seemless. When they differ, the process is contentious. In either event, the President has the exclusive power to decide who fills any vacancy on the Court. Conservative presidents might serve at the same time as a liberal Court; and, liberal presidents might serve at the same time as a conservative Court. When vacancies arise, the ideology of the existing administration will determine the appointment. Conservatives will appoint conservatives and liberals will appoint liberals.

For decades now the Supreme Court has been comprised of a 5-4 split along ideological lines. One vote always makes the difference; and, that's why each nomination is so important. The party in the "judicial minority" always looks forward to the opportunity to shift the scales; and, the party in the "judicial majority" constantly fears the day when that will happen. That's just the way it is folks. The Senate is required to approve the nomination so long as the nominee is "qualified." Basically, anybody other than the insane is "qualified" (they don't even have to be a lawyer, much less a judge, much less a good judge). That's our Constitution, plain and simple.