Comments on: Sotomayor: In Her Own Words http://www.buckeyeinstitute.org/blog/2009/05/26/sotomayor-in-her-own-words/ Up To The Minute Analysis Of Ohio Public Policy Fri, 30 Oct 2009 15:34:40 -0400 http://wordpress.org/?v=2.8.1 hourly 1 By: token liberal http://www.buckeyeinstitute.org/blog/2009/05/26/sotomayor-in-her-own-words/comment-page-1/#comment-4456 token liberal Wed, 27 May 2009 23:19:20 +0000 http://www.buckeyeinstitute.org/blog/?p=4195#comment-4456 She just told the truth—all high-level judges make policy. Of course—they all claim to be following the law—but sometimes you have to decide where there is no guidance. The higher the court, the more often it happens. For an easy example: The constitution says that “Congress shall make no law…abridging the freedom of speech.” That’s all it says about free speech. Yet—we all agree and understand that you cannot yell “fire” in a crowded theatre when there is no fire, that you cannot tell our state secrets to our enemies, that you cannot lie to a person in order to steal money from them. Yet—these are all limited by laws that abridge free speech. How could judges allow this, despite the clear language of the constitution? By making policy! That’s how! Another recent example: The conservative majority recently outlawed a school district’s attempt to maintain racial balance. You may like it or not—but it certainly made policy, and took the right to make policy away from those elected to do so. Let’s be straight here. This is about conservatives verses liberals. It is also about the intersection of law and politics. We elect presidents and senators, and they nominate and confirm judges. A few years ago, this meant we got Roberts and Alito. This year it means we get Sotomayor. I wish we could get past pretending that this is about policy-making, or empathy, or interpreting law vs. making law. Justice Roberts claimed he was just an umpire, calling balls and strikes. But as any baseball fan knows, some pitches are impossible to call, and every umpire’s strike zone is a bit different. So if you want to oppose Sotomayor, why not just do it because you are not liberal and will not like her decisions. And also keep in mind—if you really want a different judge, you need to elect different presidents and senators. It’s political—let’s just admit it—and we’ll see (and hopefully beat) you at the next election. She just told the truth—all high-level judges make policy. Of course—they all claim to be following the law—but sometimes you have to decide where there is no guidance. The higher the court, the more often it happens.

For an easy example: The constitution says that “Congress shall make no law…abridging the freedom of speech.” That’s all it says about free speech. Yet—we all agree and understand that you cannot yell “fire” in a crowded theatre when there is no fire, that you cannot tell our state secrets to our enemies, that you cannot lie to a person in order to steal money from them. Yet—these are all limited by laws that abridge free speech.

How could judges allow this, despite the clear language of the constitution? By making policy! That’s how!

Another recent example: The conservative majority recently outlawed a school district’s attempt to maintain racial balance. You may like it or not—but it certainly made policy, and took the right to make policy away from those elected to do so.

Let’s be straight here. This is about conservatives verses liberals. It is also about the intersection of law and politics. We elect presidents and senators, and they nominate and confirm judges. A few years ago, this meant we got Roberts and Alito. This year it means we get Sotomayor.

I wish we could get past pretending that this is about policy-making, or empathy, or interpreting law vs. making law. Justice Roberts claimed he was just an umpire, calling balls and strikes. But as any baseball fan knows, some pitches are impossible to call, and every umpire’s strike zone is a bit different.

So if you want to oppose Sotomayor, why not just do it because you are not liberal and will not like her decisions. And also keep in mind—if you really want a different judge, you need to elect different presidents and senators. It’s political—let’s just admit it—and we’ll see (and hopefully beat) you at the next election.

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