What Sonia Sotomayor Is Dying To Say But Can’t

Senator, if by “judicial activism” you mean will I decide a case based solely on my personal policy preferences, then no, I am not a “judicial activist.” Frankly, I don’t think any of the current members of the Supreme Court are that. They disagree with one another strongly, but I expect that they do so honestly and in good faith, and all of them have substantial reasoning behind their opinions. That’s what judging is all about.

But if by “judicial activism” you mean am I willing, in an appropriate case, to use the power of the bench to strike down or modify a law which I find through application of reason, good sense, legal scholarship, and in the context of the facts as framed by a particular lawsuit to be in violation of the Constitution, then I suppose that I am exactly that. And frankly, if you define “judicial activism” that way, then every member of the Supreme Court is a “judicial activist” and so are, essentially, all of the other Federal judges in the country. And under that definition, you would be an “activist,” too.

If you and I can agree about nothing else in the Constitution, surely we can agree that it creates a system of checks and balances between the three branches of government, and that the judiciary is a part of that system. The Constitution vests power in the judiciary, power co-equal to that of Congress or the President.

If the Senate votes to confirm me to a position of judicial power (as it has twice already in my career), I would not respond to that confirmation by simply affirming every law and executive action that comes before me for review for no better reason than that a majority of elected representatives voted for it. Our system of government is not a simple democracy and never has been. The Constitution requires that the judiciary serve as a check on the other two branches of government. If given the office of Justice of the Supreme Court, I would attempt to fulfill, and not abdicate, the responsibility that office demands of the judge who holds it.

But let’s set that aside. I’d like us to be candid with one another, Senator. Let’s dispense with the code words and use plain English. Your question is not about abstract judicial philosophy or the theoretical framework of our delicate Constitutional balance of power. It’s about abortion. You want to know if I will vote to overturn or uphold Roe v. Wade. I can’t and I won’t tell you that. You can’t ask me to pre-judge a case without that case being before me, and you can’t ask me to disclose here how I would vote.

You know the current state of the law as well as I do. We both also know that if confirmed, I could in theory vote to overturn Roe v. Wade or I could vote to uphold it or I could vote to modify it. But I can’t tell you whether I would do any of that until there is a case before me, and then I’d have to decide within the context of that individual case. We both know this already, too. And so do the people of this country watching and listening to these hearings on TV and the radio and the internet.

But I doubt that you really care about how I’d vote in any sort of case other than a case involving abortion. And the voters you’re trying to please with that question don’t really care about that, either.

Sure, we can talk about eminent domain or guns or religion and free speech or criminal procedure. But none of that matters to you, at least when you ask that particular question, in that particular way. We can talk about “judicial activism” all day long, but it really comes down to abortion, and you and I both know that in this hearing, you are free to express your opinion on the issue because you are a legislator, and I am not free to express mine because I am a judge.

When that case inevitably comes before me, either I’m going to vote your way or I’m going to vote the other way. And thanks to both the code of judicial ethics and a generation of politics going back and forth on this issue, I’m not in a position to give anyone, on either side of that issue, any advance assurances one way or another. If you’re going to look for tea leaves to read by asking me about my “judicial philosophy,” you’ll need to be more subtle than that because a direct answer is not something I can give you in a hearing like this one.

So I would prefer that we moved on past this subject to focus on things that might conceivably be useful for people who are concerned with issues other than abortion to consider.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.