The Rights Questions For Sotomayor

Obama thinks big.

To borrow from Stephen Skowrownek, a professor of political science, President Obama seems to understand himself as a reconstructive president – a once in a generation politician who succeeds the weak inheritor (President Bush) of an existing and fragmenting political order (Reagan’s) and constructs a new majority that will transform America’s political commitments.

This is why, during the Democratic primaries, Obama compared himself to Reagan, rather than to Bill Clinton, a man with much smaller aspirations.

This is why, in a 2001 radio interview, he spoke favorably of “redistributive change” and a constitutionalism that was not so tethered to a concept of “negative rights.”

And this is why he has now doubled down and nominated Sonia Sotomayor, rather than folding and walking away from his previously articulated empathy standard.

The Reagan legacy, culminating in the confirmation of Chief Justice Roberts and Justice Alito, was an argument for judicial modesty in the face of our Constitution’s democratic foundations. As a Senator, Obama flatly rejected that understanding of a depoliticized judiciary arguing that “truly difficult” cases require a judge to resort to “one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.”

Like his reconstructive predecessors – Jefferson, Jackson, Lincoln, FDR, and Reagan – Obama seems ready to promote his own revolutionary understanding of our constitutional inheritance, one that in his view will promote a richer democratic community. The Sotomayor nomination is in pursuit of this goal. The question for Republicans is how they will confront Sotomayor in a manner consistent with both her and their constitutional responsibilities.

Sotomayor will no doubt resort to the “Ginsburg Rule” of “no hints, no forecasts, no previews,” a rule embraced by conservatives.

Any time spent by Republicans attempting to mine answers from Sotomayor on her respect, or lack thereof, for certain precedents will be time wasted. Similarly, any discussion of current events, particularly any protracted discussion of gay rights, will likely redound to Obama’s benefit.

Senate Republicans will be tempted to challenge Sotomayor’s commitment to privacy and liberty – the most pliable features of a living Constitution. They shouldn’t. She will give the same answer that Chief Justice Roberts and Justice Alito gave – ‘the Constitution does protect these constitutional values, but as a lawyer and judge I am not at liberty to provide any greater detail on the precise application of those constitutional commitments.’

However, Judge Sotomayor’s judicial methodology should be fair game.

Senator Schumer was right. It is appropriate to question a nominee for the Supreme Court about her ideology – not her views on particular issues, but certainly her understanding of the role unelected judges should play in driving social change in a democracy. Republicans can certainly ask Sotomayor what methods she would use in discerning the existence of constitutional developments.

Would the practices of other nations have any bearing on her understanding of America’s constitutional rights? If so, would she make any distinction between the expansion of rights through the democratic process and the expansion of rights through national courts, the European parliament, or the United Nations, all of which are of more questionable democratic legitimacy?

In the close cases that the President spoke of when elaborating his empathy standard, how would Sotomayor determine when standards of decency or conceptions of constitutional liberty had evolved enough to justify striking down state law or abandoning precedent? Is it possible for the people, through their democratically elected representatives, to halt or reverse constitutional developments previously identified by the Court? In a dynamic political environment, how would she compare the actions of state courts and legislatures, popular referenda and amendments, and the United States Congress when discerning the existence of constitutional developments?

How precisely would Sotomayor determine whether the actions of a state legislature, or of the people through popular referenda, are plainly irrational and motivated by an unconstitutional animus toward a disfavored group? What level of democratic advocacy by a religious institution is necessary to demonstrate such an animus?

Could a judge properly rule a popularly enacted amendment to the United States Constitution unconstitutional?

These methodological questions are fair game, and there is no justification for Sotomayor to refuse to answer them.

It is likely that President Obama seeks to fundamentally alter the constitutionalism advanced by his predecessor Ronald Reagan. He rejects artificial limits on the sweep of the Constitution’s normative commitments, and he sees the judiciary as a partner in his efforts to favor the poor and other disadvantaged groups in law.

Prior to her nomination, President Obama spoke with Judge Sotomayor for an hour about judicial philosophy. It is likely that they are of one mind on this subject. And it is wholly appropriate for Senate Republicans to determine whether Judge Sotomayor has any real methods that she would employ when determining the existence of constitutional developments. Otherwise, Obama’s promotion of constitutional change and a reactivized judiciary is just madness.