Vote No on Sonia Sotomayor | Doug Bandow | Cato Institute: Commentary

Vote No on Sonia Sotomayor | Doug Bandow | Cato Institute: Commentary: "In trying to assess how Justice Sotomayor would behave, we should consider the president's expectations. Then-Sen. Obama, who voted against both John Roberts and Samuel Alito, emphasized the 'quality of empathy.' While most cases can be decided on the basis of case law and precedent, said Sen. Obama, there remain five percent which 'can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world words, and the depth and breadth of one's empathy.' Alas, this latter category, however few in number, accounts for most of the important issues about which we most care and which most divide us."

'She also believes that judges are to change the law. For instance, she complained: "The public expects the law to be static and unpredictable. The law, however, is uncertain and responds to changing circumstances." Of course, changing the law cannot be left to legislators: "Our society would be straightjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions."

Indeed, "A given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction."

After all, she contends: "change — sometimes radical change — can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive civilized but always evolving society." As she declared in a videotaped talk, the "Court of Appeals is where policy is made" and where "the law is percolating."'

'No one would disagree that as society changes, so must laws and practices. That is why the Constitution allows amendments and legislatures exist. Our political system leaves most decisions on "change" up to the legislative and executive branches. Turning a group of nine jurists, irrespective of how diverse and empathetic, into a continuing constitutional convention puts all liberties at risk.'

'The issue is not whether one believes abortion should be legal. But Roe does not deserve to be called constitutional law. Rather, it is an act of judicial usurpation, unsupported by constitutional purpose, original intent, and legal precedent. For a nominee for the high court to embrace Roe suggests that they will not carry out their duty to faithfully interpret and apply the Constitution.'