As Supreme Court experts rarely fail to point out, Sonia Sotomayor's accession to the Supreme Court this week will do little to shift future outcomes in hot button cases, because she will likely vote as did her predecessor, center-left Justice David Souter. Nevertheless, the confirmation ritual she has just completed could ultimately turn out to be a substantial plus for progressives. Her performance, and even more, statements by senators, especially Judiciary Committee Chair Patrick Leahy, could reposition progressives on and off the Court with a new vision that spotlights the Roberts Court's appetite for judicial supremacy and reactionary outcomes -- "unabashed law-making," as Justice John Paul Stevens recently put it.
Judge Sotomayor's stolid repetition that judges single-mindedly apply the law to the facts, case by case, shelved the stereotype that progressive judges rule based on their hearts and treat the Constitution as a play toy. But, disappointing to many observers, Sotomayor declined to pivot and suggest where, substantively, fidelity to the law might lead, much less how text and history contradict many of the sharp right turns that conservative jurists have recently taken.
Happily, this void was filled by Democratic senators. During the hearing, Judiciary Committee members, from Leahy to the newest additions to the Committee majority, Minnesotan Al Franken and Pennsylvanian Arlen Specter, repeatedly targeted the "activism" of the Roberts Court, including its junking of long-standing precedents and statutory guarantees governing civil rights, workplace fairness, and corporate influence over campaign finance, and its contempt for Congress' fact-finding authority and constitutional role. All three of these senators observed that, in its recent ruling in a challenge to the constitutionality of key provisions of the 1965 Voting Rights Act, the Court expressed a disturbing readiness to ignore the text of the 15th Amendment, which specifically assigns Congress the role of "enforcing" citizens' right to vote.
When the Senate took up Sotomayor's nomination on Aug. 3, Leahy opened the debate with a manifesto that linked the case for confirming her, on the basis of her punctilious record of fidelity to the law, with a compelling progressive narrative about the text and history of the Constitution. Noting that the Constitution is not -- as conservatives often seem to assume -- simply the document ratified in 1789, Leahy called its history a "journey," which
began with improvements upon the foundation of our Constitution through the Bill of Rights, and then continued with the Civil War amendments, the 19th Amendment’s expansion of the right to vote to women, the Civil Rights Act of 1964 and Voting Rights Act of 1965, and the 26th Amendment’s extension of the vote to young people. These actions have marked progress along the path of inclusion, and have recognized the great diversity that is the strength of our great Nation.
"These actions," he said, define "progress along the path of inclusion," implanting an indelible constitutional imprimatur on "the great diversity that is the strength of our great nation."
Leahy attacked the "activist, conservative group of justices" who have suppressed that narrative and marginalized the Reconstruction amendments, "by using a test created out of whole cloth, without any roots in the text and history of our Constitution." He noted the across-the-board criticism of this concocted federalism jurisprudence, by, among others, Judge Michael McConnell and Judge John Noonan Jr., both Republican appointees to the federal bench
Alluding to the Court's resoundingly-criticized ruling in Ledbetter v. Goodyear, Leahy also noted that "Congress acted to protect women and others against discrimination in the workplace more than 40 years ago, yet we still struggle to ensure that all Americans—women and men—receive equal pay for equal work."
That, he said, is why picking judges who actually follow what the Constitution and laws say, and what their framers intended, matters to ordinary Americans, and to the representatives they choose on Capitol Hill, the White House, and in state houses:
Will [Judge Sotomayor] be in the mold of these conservative activists who have gutted legislation designed to protect Americans from discrimination in their jobs and in voting, laws meant to protect the access of Americans to health care and education, and laws meant to protect the privacy of all Americans from an overreaching government? I think not and hope not.
If Justice Sotomayor is of a mind to vindicate Leahy's hope, she will have her hands full. In the final month of the Court's most recent term, Chief Justice Roberts and his four conservative allies accelerated and broadened the scope of their drive to undermine established constitutional and statutory guarantees. They pursued that agenda not only in the widely noted case menacing the Voting Rights Act but in a startling decision effectively gutting the 1967 Age Discrimination in Employment Act emphasized in Sen. Franken's hearing questions, as well as in two far-reaching rulings unnoticed in the Sotomayor hearing, or for that matter, anywhere else. One of these two decisions could cripple the ability of individual victims of all forms of unlawful conduct to secure, from big business or government defendants, information essential to proving their cases; the other ruling could handcuff federal district judges seeking to ensure that state and local governments comply with critical congressional mandates to, for example, respect civil rights, ensure equal educational opportunity, ensure access to health care of low-income, disabled, and elderly citizens, and protect the environment.
Nor, after Sotomayor is confirmed, can the White House or Senate Democrats take a breather from the struggle for the courts. As the Senate recesses for August, not one Obama judicial nominee -- other than Sotomayor -- has yet been confirmed. Republican leaders are fully aware of what a vast difference the president and the Senate will make simply by placing genuinely law-respecting judges like Sonia Sotomayor in the many lower-court slots that are now or will be open during the next four years. They have made clear their determination to obstruct that process with every tool at their disposal. In besting the Republican caucus' rejectionism in this battle over Obama's extravagantly moderate first Supreme Court pick, Sotomayor's Senate supporters have set down a robust template to deploy in the war ahead.