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The process of filling a vacancy on the United States Supreme Court is twofold. First, the President nominates an individual for the post, and then the Senate confirms the selection.
The President is free to choose any individual. The President usually considers two important factors when selecting a justice, first party affiliation and second judicial philosophy.
The President is not required to nominate someone form his/her political party. Most often this does happen, but not necessarily so. Benjamin Cardozo, a Democrat, was nominated by President Herbert Hoover (a Republican) because of Cardozo’s unique legal abilities, probably the best legal scholar of his day. To the extent that judges do have political affiliations, the President usually picks a person from the party.
The President’s nomination for the Court usually coincides with the judicial philosophy of the President. The two major questions the President reviews are a candidate’s stance on judicial constraint vs. judicial activism and broad construction versus strict construction of the Constitution.
Judicial activism means the decisions of the Courts are used to create new laws, and changes in American policy. Perhaps the best example of this was Brown v. Board of Education (1954) where the Courts struck down the policy of legal segregation between minorities and whites.
Judicial restraint means the opposite, where the courts do not take an active role in determining policy or changing the legal landscape. Recent decisions upholding criminal convictions and procedure are examples of restraint. United States v. Boyle (2009).
Broad construction means the terms of the United States Constitution and laws are interpreted in today’s context. The Constitution being an ever-changing instrument is reviewed by the Court as to how society best benefits from it. For instance, computer and intellectual property laws are an area that has developed over the last 30 years. The Constitution must then be interpreted by today’s standards.
Strict construction thoughts define today’s Constitutional questions within the way the Constitution was actually written; what did our forefathers mean when they drafted the language of the Constitution. How would today’s problems have been resolved by the framers and the framer’s intentions?
Judge Sotomayor in her decisions has demonstrated evidence of each point of view. For instance, she routinely has protected the rights of police officers in their investigatory roles, what constitutes illegal weapons; but held that strip searches of juvenile females require a stricter standard before being implemented.
The purpose of the Senate confirmations hearings is to decide if the candidate is qualified for the position. The Constitution states under Article II, Section 2, the Senate is to give advice and consent to the nominee. Although the generally accepted qualifications for the position are “learned in the law,” the Constitution does specifically address requirements for a justice anywhere in Article III (judicial branch).
In the past, the Senate has abused this privilege in trying to determine the political ramifications of appointing a particular person. Robert Bork (a Republican conservative judge nominate by President Reagan) was crucified by the Democratic Senate, which questioned not his abilities but only his political philosophy. Since Bork, the Senate has refined its role to consider the qualifications more so then the “political viewpoints” of the candidate.
Ruth Bader Ginsburg and Stephen Breyer (President Clinton appointments) were easily approved by the Senate. Likewise, John Roberts and Samuel Alito (recent President Bush appointments) were also confirmed without too much disagreement.
For Judge Sotomayor, her background lends itself to approval by the Senate. She graduated Summa Cum Laude from Princeton University, and then obtained her law degree from Yale Law School, where she was an editor of the Yale Law Review.
She practiced as an assistant district attorney in New York, where she prosecuted cases at all levels. She went into private practice handling intellectual property cases, international law and arbitration. In 1992 she was appointed to the Federal bench, a recommendation of Democratic Senator Daniel Moynihan of New York. In 1997, President Clinton nominated her to the United States Court of Appeals, Second Circuit, where she has served since.
Judge Sotomayor has been a short list of potential candidates for the United States Supreme Court since the Clinton administration. Her appointment for the Supreme Court should be based on her qualifications and ability to perform in that role.
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