by Matthias Deangelo

Created on: June 02, 2009   Last Updated: June 04, 2009

The argument in favor of confirming President Obama's nominee to the Supreme Court is as follows. The President won the election fair and square. Therefore, he has the right to fill judicial vacancies with those whom he believes are best suited to sit on the bench. He has made no secret of his desire to appoint judges who have (in his words) "empathy" for those marginalized by society. It is no secret that he supports judges who interpret the constitution "broadly" in favor of expanding rights and liberties. Unless the perspective judge is shown to be unethical and incompetent, she should be confirmed.

This argument has its merit, and certainly the President has the right to appoint cabinet members, military commanders and prosecutors whom he believes are best suited to carry out his policies. It is, however, a different matter with respect to judges. A president's cabinet picks generally do not last past a President's term in office. Thus, when a new President takes office in 4 or 8 years, he/she will pick new Cabinet members. Also, cabinet members serve at the pleasure of the President, meaning that he can remove any cabinet member whom he feels is not effectively carrying out his policies.

Judges, on the other hand, are different. Once appointed, they serve for life. They can only be removed by impeachment. If they issue decisions that are not to an administration's liking, the administration cannot remove them. If their decisions do not comport with the Constitution, then there is little that can be done about it. A constituional amendment process is long and difficult to implement. For these reasons, a judicial nominee is not entitled to the same deference accorded to a cabinet secretary.

Each senator swore an oath to defend the Constitution. If a senator believes that a judicial nominee will do violence to the Constitution, then he/she has a duty to withhold consent to that nominee and should do everything within his/her power to thwart that nomination. New York Senator Charles Schumer certainly did this to President Bush's nominees. The senator lead filibusters to block many of Bush's judicial picks because he believed that they interpreted the Constitution incorrectly. Republicans did not like this, but Schumer was doing his job in blocking nominees who, by his lights, did violence to the Constitution, even if I disagree with the senator's analysis.

The case against Judge Sotomayor is that her judicial competence (being frequently overruled by higher courts and criticized even by fellow democrat judges), her biased statements about race and gender, as well as her statements suggesting that a judge's role is to "make policy", suggest that she would indeed legislate from the bench and allow her own biases to cloud her judgment about the law. As a practical matter she will be confirmed, and charges of racism and sexism will intimidate many of her critics into silence. However, at the very least, her record and her statements should be subjected to the highest scrutiny before she is given a lifetime appointment to the highest court in the land. As I said earlier, a bad cabinet pick can be undone easily. Not so with a Supreme Court Justice.

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