Judgement of A Judge

The Supreme Court, the “High Court” of the United States, pilots our judicial branch of government with comprehensive judicial authority. Each Supreme Court judge is nominated by the President and confirmed by the Senate and receives life tenure. With such a prominent and extensive position, it would make sense that great consideration and thorough vetting can only answer the question of qualifications. But what many politicians today consider a worthy Supreme Court judge is at odds with the original intent of judges.

However appropriately used, the definition of “qualifications” can vary. For instance, what our founding fathers thought the qualifications of judicial nominees in the late 1700s is vastly different than the qualifications used to determine a solid candidate today. James Madison, the fourth president of the United States and the “Father of the Constitution” spoke on the importance of just representation by judges: “A law violating a constitution established by the people themselves would be considered by the judges as null and void.” Alexander Hamilton, the first United States Secretary of the Treasury and co-author with Madison of the Federalist Papers, the primary resource for constitutional interpretation, said “[The Judiciary’s] duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” Hamilton, as well as Madison, believed the constitution was the fundamental document by which judges need to base their rulings upon.

Today we have politicians, including the President of the United States, who gives a vastly different opinion to the role and responsibility of a Supreme Court judge. President Obama provided his qualifications for a Supreme Court judge when speaking at the Planned Parenthood conference in Washington DC on July 17, 2007. "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

What we need, as Obama claims, is a judge who can empathize with the everyday ailments and challenges of struggling Americans (or minorities). It is true the creators of the Constitution believed firmly that the will of the people must be represented by those in the government who make policy, but in no way did that group of men believe personal experience is a worthy qualification to being a judge. A judge’s understanding and interpretation of the Constitution is the primary qualification.

The current Supreme Court nominee, Sonya Sotomayor, has given her own elucidation of the qualifications for a Supreme Court judge. In 2001, she made remarks at Berkeley that were published by La Raza Law Journal. She claimed that for jurists who are minorities, “Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.” She went on to say, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” Sotomayor also went on to make the following comments: “to judge is an exercise of power … there is no objective stance but only a series of perspectives” and “[p]ersonal experiences affect the facts that judges choose to see.”

Sonya Sotomayor is 54 years old, a graduate of Princeton and Yale who served as a prosecutor, corporate litigator and federal district judge before joining the United States Court of Appeals for the Second Circuit in New York. Although her judicial resume is impressive, her beliefs on what the proper role of judges are is unconstitutional.

In a panel discussion in front of law students given in 2005, Sotomayor claimed “[the] court of appeals is where policy is made.” Although she immediately went on to say she didn’t intend to make such a strong statement on camera, the fact is she did. America’s earliest statesmen, including Hamilton, Jefferson, Madison, Adams and countless others, never intended to give the judicial branch the authority to make policy. One man who thoroughly studied and taught on America’s Constitutional Republic was William Rawle. Rawle was the United States district attorney appointed by George Washington in 1791, and in 1825, he said:

“The Judicial power is general or limited according to the scope and objects of the government. In a word, it must be fully and exactly commensurate with that of the Legislature. It cannot by any terms of language be made to exceed the Legislative power…But it is said that there is generally a propensity in public functionaries to extend their power beyond its proper limits, and this may at some future time be the case with the courts of the United States…In such an extreme and therefore improbable case, as there would be no color of jurisdiction, the whole [judicial] proceedings would be void.”

The earliest American politicians were very clear in their opinion that the judicial branch must be viewed as the weakest (least powerful) of the three branches of government. Immediately following the Constitutional Convention, James Madison, Alexander Hamilton, and John Jay wrote the Federalist Papers to explain how America’s new government would operate under its constitution. In Federalist #78, Hamilton wrote, “the Judiciary is beyond comparison the weakest of the three departments of power…the general liberty of the people can never be endangered from that quarter.” But does President Obama or judge Sotomayor share that same belief?

In the Wall Street Journal from November 29, 2008, Mitch McConnell wrote an article titled, “Obama’s Judges and the Senate.” He commented, “On the campaign trail, the Illinois Senator suggested that one of his criteria for selecting judges would be their ‘empathy.’ That's a far cry from judges as impartial arbiters of the law -- and would be the most untethered standard any President has offered for judicial picks. Without a fealty to the Constitution, a judge is able to bend on the emotions of a case.” And with such prevailing authority, a Supreme Court judge who ruled based on such sentimental assessments is truly a partial and predisposed danger to the original intent of the judiciary.

The America we live in today is different than the America our pioneers lived in 233 years ago, and with sociological changes come changes in political philosophy. Yet underneath the diversity we live amongst is a foundation of principles that leads to a proper and free government which makes up our Constitutional Republic.

The men who created the unique and commanding Constitution purposefully created clear boundaries and responsibilities for the judicial branch of government and its Supreme Court judges. With the ability to be the final authority over a law and, in essence, over the people, Supreme Court judges must be grounded and enlightened in the very document that gives them such authority. As Thomas Jefferson wrote, “[E]ach of the three departments has equally the right to decide for itself what is its duty under the Constitution without any regard to what the others may have decided for themselves under a similar question.”

Thomas Jefferson also echoed this warning to the American people: “The Constitution…is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” When our president nominates a judge for the high court based upon her empathy of struggling minorities, and when a soon-to-be Supreme Court judge believes not only that policy is made in the judiciary, but that personal experiences play a significant role in policy-setting rulings, the American people are inevitably left with a judicial branch of government that has been molded in a way unrecognizable to those who first created it. And quite possibly one that cannot be re-shaped.

Note: All quotes from the founding fathers were gathered from Original Intent: The Courts, the Constitution & Religion by David Barton, 2000.