Whitehouse Opening Statement on Sotomayor

Rhode Island Senator Sheldon Whitehouse's opening remarks today at confirmation hearings for Supreme Court nominee Sonia Sotomayor underscore the partisanship that is, predictably, defining the deliberations of the Senate Judiciary Committee:

In the last two and a half months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint.  Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record.  Indeed, these calls for restraint and modesty, and complaints about “activist” judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes. 

It is fair to inquire into a nominee’s judicial philosophy, and we will here have a serious and fair inquiry.  But the pretense that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history.

I particularly reject the analogy of a judge to an “umpire” who merely calls “balls and strikes.”  If judging were that mechanical, we would not need nine Supreme Court Justices.  The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction. 

The “umpire” analogy is belied by Chief Justice Roberts, though he cast himself as an “umpire” during his confirmation hearings.  Jeffrey Toobin, a well-respected legal commentator, has recently reported that  “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”  Some umpire.  And is it a coincidence that this pattern, to continue Toobin’s quote, “has served the interests, and reflected the values of the contemporary Republican party?"  Some coincidence.

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