The confirmation hearings for U.S. Supreme Court nominee Sonia Sotomayor shed little light on her thinking about religious liberty. In fact, beyond a handful of topics, there was little substantive discussion on constitutional matters.
Like other recent confirmation hearings, it was mostly political theater with partisan efforts to attach a politically useful label to Judge Sotomayor’s judicial philosophy. There is nothing wrong with attempting to label someone’s legal philosophy, but labels are often misleading and are no substitute for substance. . . . .
I recall an effort to present me as an “absolute separationist”on a panel designed to illustrate perspectives on church-state relations. I declined the label but was quite willing to describe exactly the kind of separation the BJC supports.
The common script of judicial confirmation hearings calls for the party opposed to the nominee to label him or her as outside the mainstream of American law and society — a “judicial activist” for preferred political causes. The Sotomayor hearings were no different. Sen. Lindsey Graham asked whether Sotomayor considered herself an adherent of various schools of thought — whether she was an “originalist” or one who views the Constitution as a “living” document.
Originalism rose to prominence in the 1980s, championed by Justice Antonin Scalia, among others. Generally speaking, an originalist claims to look only at the text of the Constitution and the framers’ intent in applying its provisions, emphasizing the original meaning of its terms. By contrast, proponents of the “living Constitution,” such as the late Justice William Brennan, presume that the meaning of the Constitution will naturally change over time. As Justice Robert Jackson once put it, “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Between these two opposing views of constitutional interpretation — and even within both camps — there are various alternative approaches. Justice Stephen Breyer, for example, has stated that in evaluating alternative readings of the Constitution he asks himself “all things being equal, what interpretation will make American democracy function most effectively.”
In her opening statement, Sotomayor tried to foreclose attempts to label her in a politically damaging way, describing her judicial philosophy as “fidelity to the law.” She explained: “The task of a judge is not to make the law — it is to apply the law.” She referred to her record as one that demonstrated “hewing faithfully to precedents.” When pressed by Sen. Graham, Sotomayor continued to defy efforts to pigeonhole her, recognizing that the discussion about what various labels mean and don’t mean shows their limitation and stating, “I don’t use labels to describe what I do.” Even if Sotomayor had allowed herself to be labeled, we would have been able to glean only so much. More instructive is the substance of Sotomayor’s record. But even that lengthy track record is of limited value as a predictor of future decisions because the Supreme Court need not “hew to precedent” in the same way as lower courts.
In the BJC’s analysis of her rulings on church-state cases, we concluded that Sotomayor’s approach to free exercise reveals careful attention to protecting religious rights, in that she appropriately emphasizes the individual’s specific religious claim. There is little information on her overarching view of the Establishment Clause because her few religious display decisions are specific to the facts of each case. We concluded that Judge Sotomayor’s written record raises no red flags, but also does not provide complete assurance to those who are concerned about our fragile religious liberty. Unfortunately, except for a cursory question, the Senate Judiciary Committee missed an opportunity to improve our understanding of her positions on church-state matters.
Whatever her current views, Sotomayor’s service on the Court itself will shape and likely change her judicial philosophy over time. Such evolution by justices is commonplace. Two books about the inner workings of the Supreme Court— The Nine by Jeffrey Toobin and The Brethren by Bob Woodward and Scott Armstrong — demonstrate that individual justices’ philosophies change just by virtue of being on the Court, and the Court likewise changes with each new justice. Watching both Sotomayor and the Court evolve in coming years will be far more interesting than the confirmation hearings could ever predict.
K. Hollyn Hollman is the General Counsel for the Baptist Joint Committee for Religious Liberty. Her column appears every month in Report from the Capital.
