Capitol Comment: Judging Judges: Guarding Against Judicial Activism in our Highest Court

Statement

Capitol Comment

by Senator Kay Bailey Hutchison

Judging Judges: Guarding Against Judicial Activism in our Highest Court

Since I first began to represent the people of Texas in the U.S. Senate, I have been privileged to participate in the confirmation of four Supreme Court Justices, including that of Chief Justice John Roberts. To "advise" the President on who will best uphold our Constitution in the nation's highest court and to provide "consent" to the candidates who take the bench is one of the Senate's most consequential duties. This responsibility requires our diligent scrutiny as we consider those who are nominated for this lifetime appointment.

This year, Senators will pore over thousands of documents and analyze more than 3,000 decisions that comprise the experience of our newest Supreme Court nominee, Judge Sonia Sotomayor.

There are some facts we already know about Judge Sotomayor. Through personal tenacity and hard work, undergirded by the loving support of her mother, Sotomayor overcame the challenges of a low-income, single-parent household. She went on to study at some of the nation's finest institutions, and embarked on a successful career as a district attorney, private practice attorney, and finally a federal Judge. Her life story is a shining example of equal opportunity for Americans, and it reminds all of us that for those who work hard, no obstacle is insurmountable and no aspiration is too grand.

There is no question that Judge Sotomayor brings a wealth of judicial experience to this process. We would be doing the American public and Judge Sotomayor a disservice if we did not take the time necessary to conduct a thorough review of her record. I will be looking for evidence of impartiality as well as legal expertise, a demonstrated commitment to the rule of law, insights into her personal integrity and temperament, and, most importantly, her judicial philosophy.

As I review Judge Sotomayor's record, one of the issues I will consider is her demonstrated stance on the Second Amendment. I am a staunch supporter of the right to keep and bear arms, and I firmly believe that the framers intended this right for the individual. This opinion was upheld by the Supreme Court last year in the case of District of Columbia v. Heller. It is critical that the Second Amendment continue to be protected as an individual right so that no state, city, or the federal government, may ever infringe on this liberty.

We must also examine statements she has made that may give us a glimpse into her legal values. Sonia Sotomayor made a particularly troubling remark when she was addressing a forum at Duke University Law School in 2005, suggesting that the court of appeals is where policy is made in America. Whether or not this comment was made flippantly, we must take it very seriously because it cuts to the very quick of the balance of powers carefully outlined in our Constitution.

As a Senator, I do make policy. But I am also accountable to the voters. If the American people are displeased with the decision of a Supreme Court Justice, they have no redress. That's why the framers of the Constitution wisely set forth a system of checks and balances that has sustained our democracy for over 200 years. And that is why the Senate's duty to advise and consent on Supreme Court Justices is so important: the confirmation of a Supreme Court Justice is the check the American public has on the Judiciary.

When Judge Sotomayor was nominated to the 2nd Circuit Court of Appeals in 1998, I voted against her because I had concerns about judicial activism. While I have not yet determined whether I will support her nomination to the Supreme Court, those concerns remain today and I will want to hear her explanation of her judicial philosophy. Nearly eleven years have elapsed since that first vote, and she deserves a fair hearing and debate. I will base my decision on a thorough review of her record, which I believe will give us a better indication of how she views the role of a judge and will show whether troublesome statements actually reflect what she has done on the bench.

As the Senate examines Sonia Sotomayor's record - and gives her ample opportunity to address our concerns - I expect a respectful, dignified, and above all, fair process that befits our Constitutional responsibility.

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