Thursday, May 28, 2009

The White House should beware of claiming Supreme Court nominee Sonia Sotomayor has been taken out of context. Her whole career shows that she meant exactly what she said in a 2005 videotape — “Court of Appeals is where policy is made.”

The remark is deservedly controversial. It indicates she believes judges should make policy the way legislators do. That practice of legislating from the bench is highly unpopular and directly counter to the design of American government.

White House Press Secretary Robert Gibbs repeatedly said the criticism of Ms. Sotomayor’s statement was based on a “very short, out-of-context, small YouTube clip,” and that the whole clip showed she was explaining the difference between trial courts and appeals courts. Twice, almost verbatim each time, he added that the judge deserves “the benefit of looking at exactly what she’s written and exactly how she’s ruled over 17 years on the federal bench.”

OK, let’s look at exactly what’s she’s written. A useful starting point is an essay she co-wrote for the Suffolk University Law Review in 1996, when she already was a federal judge. Called “Returning Majesty to the Law and Politics: A Modern Approach,” the essay endorses a theory that former federal judge Jerome Frank espoused in 1930:

“The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.” And: “Our society would be straitjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law. … Much of the uncertainty of the law is not an unfortunate accident: it is of immense social value.”

In the same law review article, she continued: “Lawyers do themselves a disservice by acceding to the public myth that law can be certain and stable.” And, with clear approval for the idea: “A given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

This is astonishing stuff. It says the public itself should not be able to count on the meaning of laws remaining stable from day to day - even though the people, those governed by the law, have never given their assent, through representative elections, for the laws to be changed. This theory is just a high-falutin’ way for Ms. Sotomayor to argue, as she did in the infamous videotape, that a role of a judge is to make policy.

Our Founders understood the need for stable laws. Thomas Jefferson said “the instability of our laws is really an immense evil.” Alexander Hamilton and James Madison warned of the evils of laws that “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

In place of laws readily understood and relied upon by the general public, Judge Sotomayor would have “judges declare” the meaning of the law by “adapting it to the realities of ever-changing social, industrial and political conditions.” That is what elected legislators are supposed to do. Ms. Sotomayor’s 1996 essay provides ample proof that she believes, as she said on the videotape, that appeals court judges should make policy. That’s a dangerous proposition. No amount of White House spinning can justify it or cover it up.

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