Why the Confirmation Process Matters

This week is a critical moment in the Senate where Supreme Court nominee Judge Sotomayor is attempting to describe her judicial philosophy, and the Senators have the opportunity to discharge their Constitutional role in her confirmation process.

Despite the shared pride we Hispanic-Americans feel, appropriately, in Judge Sotomayor’s nomination, we must not let our feelings get in the way of ensuring that the Senators examine her record objectively and dispassionately throughout this process.  The consequences of letting our feelings get in the way of the process can be tragic.

Many of our families from Hispanic-American communities came to the United States from countries in which the Rule of Law routinely was ignored.  In fighting for freedom and his rights, my father fled from Cuba after serving 6 years in one of Castro’s prisons.  The rights of the Cuban Constitution resembled those in the US Constitution, but the Castro government abolished all constitutional guarantees in defense of “La Revoluci??³n.” All manner of injustice was committed by government officials, including the judiciary, in the name of The Revolution.

Those whose families came from these totalitarian regimes understand, better than most, how the rule of law is the best bulwark for human dignity, and how its absence often hurts the weakest, the poorest, and most vulnerable in the hardest ways.  The least powerful in society, after all, have the least ability to insulate themselves against an oppressive state.  

In the United States, we are blessed by a history of respect for the Rule of Law and an independent judiciary, which protects us from the excesses of government.  The independence of our federal judiciary is guaranteed by lifetime appointments.   Our elected officials respect our Supreme Court as the final word on the Constitution. Unlike in other countries with less democratic traditions, no President or Congress has tried to oust the Supreme Court because of an unfavorable ruling.

This abiding respect for the Rule of Law and the independence of our judiciary can be undermined if our citizens begin to perceive that rather than following the law, judges are deciding what outcomes they prefer and overruling the policy judgments of the elected branches.  People rightly wonder about the rule of law when they hear judges stating that they can and do make policy, or that their decisions are inevitably a product of personal viewpoints, feelings, or background.    People want to be assured that Justice indeed still is blind and that a case will be decided on the merits, regardless of who the judge is or where he came from.  And while it is appropriate to have justices who understand the practical impact of their decisions on all Americans, we cannot let “empathy” or personal feelings dictate how a justice interprets our Constitution.  This is simply a license to ignore the law.

Every American should expect the Senate to do its job in the confirmation process by satisfying themselves that judicial nominees will adhere to a philosophy of applying the law and not one of making policy decisions.    

So far, some of Judge Sotomayor’s responses at the confirmation hearings bring into question whether she will be a Justice who respects the limited role of the courts in our three-branch system by confining herself to interpreting the law and not substituting her policy judgments for those of the elected branches. During this critical moment where the Supreme Court is close to a tipping point, Judge Sotomayor is carefully answering questions to appease those Senators who are concerned about her impartiality in judicial cases; however, her record, previous liberal advocacy work and speeches do not reflect her responses at the hearing.  I am hoping that the Senators will further explore these discrepancies and shed light on where Judge Sotomayor truly stands.

It is also my hope during these confirmation hearings that Judge Sotomayor will prove her commitment to a limited judicial role, not just by her words, but by her actions if she is confirmed and that, in so doing, the Senate’s process will help bolster the rule of law and instill in our country an even greater affection for blind justice.