Statement of JAG, Confirmation of Judge Sotomayor

Statement of Judicial Action Group President, Phillip Jauregui, on the Confirmation of Judge Sotomayor.

The confirmation of Judge Sotomayor to the United States Supreme Court brings with it bad news and good news. The bad news is evident that the Court will add to its membership one who appears to think that judges have legislative and policy-making authority.

However, there is good news also. First, the empathy standard announced by President Obama himself has been rejected both by his own nominee and the American people. Even with an overwhelming democratic majority in the Senate, the debate on Sotomayor did not lend respect to the once popular liberal/progressive philosophies regarding "a living Constitution, evolving standards of decency or even the new empathy standard. Instead, the debate bolstered the conservative/constitutional position that judges should never "legislate from the bench." The confirmation battle left no question that when it comes to the battle of ideas, the liberals and judicial activists have surrendered their argument. Their actions however, are another matter and are of far more concern.

Second, there was significant discussion during this battle regarding the use of foreign law in deciding American cases. Despite her speech to the ACLU, where she strongly approved of the way the Supreme Court had used foreign law in Roper v. Simmons and Lawrence v. Texas, Judge Sotomayor was forced to acknowledge that American law does not permit the use of foreign law or international law to interpret the Constitution. While we all hope that the Sotomayor we heard during questioning is the same Sotomayor who will sit on the Supreme Court, the fact that Judge Sotomayor recognized the need to unequivocally disavow using foreign law to interpret the Constitution is a victory in itself.

Third, the confirmation battle marked a step in the right direction for many conservatives who exceeded expectations and mustered 31 votes in opposition a much higher number than many in the news media and some in the conservative camp anticipated. Unlike past controversial nominations such as that of Justice Ginsburg, conservative leaders devoted much time and resources to examining the record and statements of Judge Sotomayor. This effort was honorable, not only because of the Senators' renewed dedication to keeping activist judges off of the bench, but also because many took seriously their constitutional duty to give advice and consent in regard to the nominee.

Judge Sotomayor will now take her seat on the Supreme Court. Should her record on the Court not comport with the Constitution, those Senators who voted for her should be prepared to defend their vote before their constituents.