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CRS Report Concludes Sotomayor Is No Activist

By Ian Millhiser  

"CRS Report Concludes Sotomayor Is No Activist"

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roberts-hearingThroughout his confirmation hearings, Chief Justice Roberts compared himself to a baseball umpire whose job was simply to objectively call balls and strikes–never to impose his own preferences on the game.  “Modesty,” “humility” and “judicial restraint” were Roberts’ buzz words; fair decisions without ideology his promise.

Of course we now know that, with John Roberts as the umpire, the strike zone has moved awful far to the right, but it is not surprising that Roberts pretended to be non-ideological and restrained when he was trying to sell himself as a future Chief Justice.  The American people like their judges to follow the law; and they no doubt would have viewed him harshly if he had confessed to being an ideological crusader.

In just over two weeks, Judge Sotomayor will have her own confirmation hearings. While it remains to be seen how she will present herself in those hearings, a report by the non-partisan Congressional Research Service confirms something that should be obvious to anyone who has examined her record.   She actually is the kind of modest, non-ideological judge that Roberts claimed to be:

Overall, Judge Sotomayor’s opinions defy easy categorization along ideological lines. . . . General characteristics of her approach to the judicial role are more easily identified. Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge could be described as an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. This characteristic would be in line with the judicial philosophy of Justice Souter, who often displayed special respect for upholding past precedent. Another characteristic of Judge Sotomayor’s opinions could be described as a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced. She tends to adhere to the plain meaning of the text but, in the face of ambiguous language, appears willing to consider the intent and purpose of a statute. Judge Sotomayor’s opinions also display her apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case.

Amusingly, Senator Sam Brownback (R-KS) recently announced that he would oppose Sotomayor’s nomination because “I am afraid Judge Sotomayor wants to be more of a player than an umpire.”  Maybe he’s confusing her with John Roberts.

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