How the Sotomayor Saga Could Help Progressives Take Back the Courts

[marmar]

from The American Prospect:



How the Sotomayor Saga Could Help Progressives Take Back the Courts
Sotomayor's hearings shelved the stereotype that progressive judges rule based on their hearts and treat the Constitution as a play toy.

Doug Kendall and Simon Lazarus | August 10, 2009 | web only


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.

....(snip)....

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. ...........(more)

The complete piece is at: http://www.prospect.org/cs/articles?article=how_the_sotomayor_saga_could_help_progressives_take_back_the_court