SOTOMAYOR: THE END OF CONSTRUCTIONALISM?
Kudos to journalist Salon.com Mike Madden and his explicit claim The white man is being oppressed! (Salon.com, 5/29/09) that Right Wing Bosses Gingrich-Limbaugh have a Freudian personality disorder. Popular conservative pundits’ attacks on Sotomayor for issues of racism, sexism, and constitutional incompetence are, as Madden writes, simply “projection by aging white right-wingers”.
The white man’s fears of oppression are wolf cries, reflections of their guilt and greed, after having brought down the richest country in the world. The oppositions’ claim of constitutional ignorance is equally simple fear of diluting even further the strangling hold that Constitutionalist Reagan/Bush appointees may have on the bench.
Although the two schools of strict constitutionalism and liberal interpretation have been an issue of the judiciary since its inception, Constitutional interpretation is an issue that may cause Sotomayor the most scrutiny during congressional hearings. Republican political thought is more consistent with strict-constructionalism, and to them, Sotomayor’s judicial activism and liberal interpretation of Statutory law is nothing more than pure disregard for the Constitution.
Others disagree, claiming that the Constitution is a living document, and was meant to be interpreted according to the times. Sotomayor makes no excuses for her interpretation of the law. In 2001, the NY born Puertorriquea lectured at UC Berkley where she acknowledged that her life experiences have influenced how she sees her judicial duty to interpret the law. Her belief in experience, wisdom, and analysis are the cornerstones of her judicial philosophy. In a You-Tube clip posted by a blogger meant to discourage support, Sotomayor admits to “judicial policymaking”, acknowledging that “we’re not supposed to” make law, and then quickly adding “I do not promote it or advocate it…”, but the chuckles in the back of the room verify the reality of the judiciary.
In reality, the Legislative Branch, Congress, is not the only law-making body in U.S. Government. Precedential law has routinely been upheld in courts. Miranda v. Arizona (to be informed of your rights upon arrest) and Gideon v. Wainwright (that counsel will be provided at no cost) are two examples of Supreme Court law that has been implemented and enforced by the States. Administrative organizations, a non-legislative part of the Executive branch, are charged with creating rules and regulations which also carry the force of law behind them. Paradoxically, they also hold hearings that have the weight of the judiciary behind them, allowing Administrations to create, implement and judicially enforce the rules and regulations they create. Again in the Executive Branch, although rare, the President does have the power to make law through an Executive Order. Although the framers were cautious to create a tri-partite government, the branches often slip into another’s constitutional territory, making Constructionalism a discourse, not a constitutional requirement.
Sotomayor will become the next Supreme Court Justice, and the largest minority group in the Country will at last have judicial representation in the Highest Court. Congress will examine the issue of Sotomayor’s constitutional interpretation with a microscope, and still, she will be appointed: As Madden points out, any Republican who is interested in being re-elected, will not fight a tide that the GOP has no power to turn (with 40 seats). But in the meantime, we can watch the old white guys scratch and scramble to turn every rock, and try to convince a nation that has been hit square in the head, heart and pocketbook with the reality of the right wing bankers and war-mongers, that the Constitution, like the Bible, should be interpreted word for word. After so much harsh reality, Americans are ready for some liberal interpretation.