I have another piece on Sonia Sotomayor in the works that will appear sometime soon. What follows is a letter of mine that appeared in the Wednesday, June 10, 2009 Nashville (IL) News.
As eye-brow-raising as was Judge Sonia Sotomayor's comment about the wisdom of a wise Latina woman, a briefer and much more disturbing comment was uttered by her at Duke Law School in 2005: "The Court of Appeals is where policy is made . . . I know I should never say that, because we don't 'make law,' I know," to a chorus of laughter.
This would be news to the Founding Fathers who did not want the courts to make policy - that is the precise role of the legislature. The judiciary, on the contrary, interprets the law, it does not make it. More so than her comment about being a "wise Latina" does this reveal why constitutionally-minded Americans should oppose Judge Sotomayor's appointment to the high court.
For decades, courts have been making laws instead of interpreting them - in direct opposition to their constitutional role. It was Supreme Court Justice Thurgood Marshall's advice, "Do what you think is best and wait for the law to catch up," that serves as the motto for today's judicial activism.
Many Americans are rightly upset that abortion became the law of the land. What made it even more reprehensible is that it came not through constitutional legislation, but by order of judges unaccountable to the people. It is judges' loyalty to the philosophy Marshall espoused that makes possible the tyranny that faces us today. That Sotomayor and others laughed should tell us exactly what they think about the Constitution, the American people, and what we should expect from the wise Latina woman as a judge.
There have been Supreme Court justices whose failure to uphold the Constitution came as a surprise: Earl Warren, Sandra Day O'Connor, and David Souter, just to name a few recent ones.
If Supreme Court Justice Sonia Sotomayor illegally legislates from the bench, it will only be a surprise to those who weren't listening.