May 28th, 2009
05:20 PM ET
9 years ago

In her own words: Sotomayor on judicial activism

Sonia Sotomayor in 1997 wrote about judicial activism.

Sonia Sotomayor in 1997 wrote about judicial activism.

WASHINGTON (CNN) – Supreme Court nominee Sonia Sotomayor shared her views on judicial activism with members of the Senate during her two previous federal court confirmation hearings in 1992 and 1997.

A Senate Judiciary Committee questionnaire from 1997 asked the judge to "discuss your views" in writing on judicial activism.

Her complete response to that question is available after the jump:

"At the time I was nominated as a district court judge, I answered this question as follows:

'Our Constitution vests the right to make and administer laws in the legislative and executive branches of our government. Judges impermissibly encroach upon that right by rendering decisions that loosen jurisdictional requirements outside of the scope of established precedents and by fashioning remedies aimed at including parties not before the court to resolve broad societal problems.

Judges must provide fair and meaningful remedies for violations of constitutional and statutory rights to the parties before a court. Doing so can, at times, affect broad classes of individuals, may place affirmative burdens on governments and society and may require some administrative oversight functions by a court.

A judge's decision should not, however, start from or look to these effects as an end result. Instead, because judicial power is limited by Article III of the Constitution, judges should seek only to resolve the specific grievance, ripe for resolution, of the parties before the court and within the law as written and interpreted in precedents. Intrusion by a judge upon the functions of the other branches of government should only be done as a last resort and limitedly.'

My service as a judge has only reinforced the importance of these principles. Finding and maintaining a proper balance in protecting the constitutional and statutory rights of individuals versus protecting the interest of government, financial and otherwise, is very difficult. Judges must be extraordinarily sensitive to the impact of their decisions and function within, and respectful of, the constraints of the Constitution."

Filed under: Sonia Sotomayor • Supreme Court
soundoff (87 Responses)
  1. Teleprompter of the U.S.A.

    "how does GOP talkpiece "Teleprompter of the U.S.A." get a dozen posts while I can't get one in?"

    Sadly, I'm not. If I was, they'd be in a lot better shape. And believe me, I used to never get anything through while reading some of the worst liberal diatribes I have ever seen.

    I'm making up for lost time. I figure they finally have a fair moderator. It definitely isn't Jack Cafferty who doesn't let anything I post go through.

    May 28, 2009 05:51 pm at 5:51 pm |
  2. Teleprompter of the U.S.A.

    Marc – that is just wrong. There is no occasion for them to intrude on the other branches like what she says. That is not what the job is.

    Lowell, that is exactly what the judges did not do during Bush's administration.

    Good grief, are you people for real?? Have yany of you liberals ever taken a civics class or read anything about American History before the Vietnam War that JFK started and you tried to blame on everyone other than him?

    May 28, 2009 05:51 pm at 5:51 pm |
  3. RealityKing

    The Supreme Court is an equal branch, not an overriding one. See the conflict when not adhering strictly to the constitution??

    May 28, 2009 05:52 pm at 5:52 pm |
  4. Teleprompter of the U.S.A.

    I mean I've personally never taken a civics class but that's beside the point!!!!!!

    May 28, 2009 05:53 pm at 5:53 pm |
  5. Mike in MN

    She told the Senate what they wanted to hear. Her comments in speeches outside of addressing Senate confirmation hearings are much different. You can bet the Senate will be asking her to explain comments she has made that indicate she in fact may be an activist judge. How she answers those questions will make a big difference in how many Republicans vote for or against her. In anycase she will most likely be voted in.

    May 28, 2009 05:54 pm at 5:54 pm |
  6. Fair is Fair


    And who says libs and conservatives can't agree on some things 🙂

    May 28, 2009 05:54 pm at 5:54 pm |
  7. RealityKing

    Much like Prop 8, where in the constitution does it talk about marriage? It doesn't, so only a constitutional admendment on marriage would allow the courts to override the voters..

    May 28, 2009 05:55 pm at 5:55 pm |
  8. Chuck Hayward

    She has ?marks; how will she vote on abortion issues.
    What does she really believe on writing law from bench?

    May 28, 2009 05:55 pm at 5:55 pm |
  9. Matthew of Boston

    Sotomayor is being perpared for her hearings - which is DC speak for DO not tell the truth under any circumstance.

    I find this nomination to be shallow and reckless, but those are the hallmarks of Barack Obama

    May 28, 2009 05:55 pm at 5:55 pm |
  10. Teleprompter of the U.S.A.

    Well, I did google the word civics, so that counts as actually taking a civics class, right?

    May 28, 2009 05:55 pm at 5:55 pm |
  11. revolution

    Did Gibbs threaten Newt for his opinion

    “I think it is probably important for anybody involved in this debate to be exceedingly careful with the way in which they’ve decided to describe different aspects of this impending confirmation,” Gibbs said.

    May 28, 2009 05:57 pm at 5:57 pm |
  12. Mike, Syracuse, NY

    @Hmmmmm, "A constitutional amendment against …let's see… flag burning…abortion…gay marriage…nope no judicial activism there."

    No there isn't since none of these Constitutional Amendments exist. Look up what 'judicial activism' means. Amendments are Legislative processes, not judicial.

    May 28, 2009 05:58 pm at 5:58 pm |
  13. Deb n Texas

    I am not getting myself worked up with what the GOP is saying because you know what – SONIA SOTOMAYOR IS GOING TO BE CONFIRMED WITH OR WITHOUT THEM! LOL That is the funny part, so I will just laugh at those stupid, hateful republicans.

    May 28, 2009 05:58 pm at 5:58 pm |
  14. RealityKing

    Same for Roe v Wade.., if right to privacy overrides inalienable rights, then it should be in there!!

    May 28, 2009 05:59 pm at 5:59 pm |
  15. Michele

    Nearly every lawyer I've heard on all networks who has read her decisions says she is NOT an activist. This is a term thrown out there by Gingrich and Hannity to rile up the base against her. It also won't work, as most Senators are wiser than Newt and way smarter and fairer than Sean Hannity.

    May 28, 2009 05:59 pm at 5:59 pm |
  16. Matt

    If she gets overturned 65% of the time that means she is only right 35% of the time. Can someone tell me why she is the most qualified again? Race and Gender are not qualifications even if the Affermative Action President thinks they are. He is dead wrong on this one.

    May 28, 2009 06:01 pm at 6:01 pm |
  17. demwit

    Deb n Texas is right, there is nothing Americans can do about judges dicating law from the bench. Well...., theres always the second admendment.

    May 28, 2009 06:02 pm at 6:02 pm |
  18. kcr

    Too much is made of the so-called "policy" comment. It should be considered within its proper context. And that context is the reality that the Courts of Appeal are almost always the end of the adjudicatory road for litigants in the federal courts. The Supreme Court grants certiorari to around one percent of cases. That means that important precedent is often created in the Courts of Appeal and one of the major factors determining if the Supreme Court will ultimately decide weigh on on an issue is if the Circuits are split. Thus, not only do Circuits Courts of Appeal often create lasting precedent, but they also frame the issues when the Supreme Court does grant cert.

    It is at worst poor phrasing for her to refer to the job of judges as making policy. It doesn't take a law professor to understand that applying the law to a unique set of facts requires a certain degree of discretionary characterization. Constitutional concepts are particularly amorphous– you just cannot look at the Constitution for the meaning of the words "cruel and unusual," for instance. Cases where a litigant is requesting an equitable remedy are also not necessarily subject to formulaic resolution. "Policy" decisions get made in these spaces. It is the nature of the law and it is well within the purview of the job as judge. I could go on to discuss reconciling statutory language etc.; but I think I've made my point. The comment simply does not telegraph that Judge Sotomayor is some renegade judicial activist.

    May 28, 2009 06:03 pm at 6:03 pm |
  19. Frank

    Well Teleprompter if what you say is true schools would still be segregated, women wouldn't be allowed to vote let alone hold office, African americans would still be considered 3/5ths of a man, and abortion would be illegal. After all none of these issues were covered in the Constitution. It took some judge somewhere... Oh yeah on the Supreme Court to say that these acts though not defined in the Constitution are indeed unconstitutional... Correct me if I'm wrong but that seems like legislating from the bench. In other terms its called setting a legal precedent at which time it is up to the state and/or federal government to create a law for....

    May 28, 2009 06:04 pm at 6:04 pm |
  20. James M. Holmes

    LOL... getting a remark about taking a "civics class" from someone who voted for Bush/Cheney twice...

    Kind of like being told to "take a sensitivity training class" by a Nazi Youth, don't ya think? haha...

    May 28, 2009 06:04 pm at 6:04 pm |
  21. kevmen

    Sotomayor did NOT say she believes that courts should legislate from the bench. Rather she was recognizing the difference between the appellate court and the district court. Part of the quote in context reads, ""...if you're going into academia, you're going to teach,...they're looking for people with court of appeals experience, because it is - court of appeals is where policy is made. And I know - and I know this is on tape and I should never say that because we don't make law, I know. OK, I know. I'm not promoting it, and I'm not advocating it, I'm - you know. OK. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating - its interpretation, its application....On the court of appeals, you are looking to how the law is developing, so that it will then be applied to a broad class of cases. And so you're always thinking about the ramifications of this ruling on the next step in the development of the law."
    Hmm, "we don't make law"..."I'm not promoting it and I'm not advocating it".... Please, can we put this conservative canard to rest!

    May 28, 2009 06:05 pm at 6:05 pm |
  22. Ames Tiedeman, Austin, Texas

    Wake up America. I have been reading all I can about this woman the past two days. My conclusion is that she is NOT fit to serve on the U.S. Supreme Court. She is NOT an impartial judge who strongly believes in getting the Constitution right. She care about her rules, not the rule of law as written in the Constitution. Go read what she says about 2nd Amendment Rights, for starters. She is a Fascist at best. This is a human being who thinks policy is made on the Appellate Bench. Folks, policy is never made on any Bench. Her job as a judge is to interpret the law, not create it. This is what we have the Congress for. I do not care if she is black, brown, yellow, white, purple or green. Race does not matter. The quality of her personality and genre of existence as a human being and Judge, do not equate to a seat on the Supreme Court . America must, can, and will do better.

    May 28, 2009 06:05 pm at 6:05 pm |
  23. Brandon - Charlotte, NC

    And one more thing:

    I'm a white male married to a latina female; we have a daughter in 1st grade and we speak both spanish and english in our household.

    I don't care 2 cents for which party the nominee represents. If they have intelligent, constitutiionally sound, and logical thinking (and have the necessary qualifications!) I'm interested to see what they have to say.

    Judicial Activism is simply horrible policy. In that situation, we'd be effectively allowing that a single person's mental acumen is superior to the group of 100+ senators/representatives that it likely took to write the law in the first place.

    A judge has the ability to STRIKE DOWN any portion of a law that is deemed unconstitutional. That then puts the burden on the legislature to remedy their intent/language/etc to bring their law into conformity with the constitution.

    Taking it upon themselves to rewrite the law, which is what Ms. Sotomayer appears to advocate, is specifically EXCLUDED from their judicial powers per the constitution.

    If someone can point out to me where it's otherwise prescribed in the constitution, I'm glad to listen, though! If not, we need to thank Ms. Sotomayer for her time and send her and her Judicial Activism packing.

    May 28, 2009 06:07 pm at 6:07 pm |
  24. Marc

    Teleprompter of the U.S.A. – No, it's not 'wrong', it happens. Excepcional circumstances, not regular and common ones.
    And, yes, there are special 'occasion for them to intrude on the other branches like what she says'. See Marbury vs. Madison, that ruling that set (or crystalized according to some) the concept of judicial review in the USA.

    May 28, 2009 06:10 pm at 6:10 pm |
  25. douse

    What some people do not realize is that the whole notion of judicial review, which Americans take for granted today, has it origins in a bold act of judicial activism. Chief Justice John Marshall essentially endowed the Supreme Court with the "right" of the Court to determine what is and is not law in Marbury v. Madison. Even Scalia has admitted that the Court "made it up." Nowhere in Article III does the Constitution provide the Supreme Court with the right to strike down laws, yet judicial review has been so tightly woven in the fabric of American government that we oftentimes take it for granted.

    May 28, 2009 06:13 pm at 6:13 pm |
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