It seems so unlikely that Al Franken would have the most to teach us during the Sotomayor hearings, but it looks like that is the case. At the very heart of the concern of conservatives about Sotomayor is judicial activism; the “wise Latina” comment and her speeches about the appellate courts being where law is made are problematic because of this concern. There are other minor things to pick at, specifically ideological, but it is difficult to pin her down by decision as either conservative or liberal, in fact I’d argue on her behalf that she is judicious, and not conservative or liberal.
Judicial Activism is used often by most everyone that debates politics for fun or profit, on both sides of the isle. The interesting thing is that you’d be hard pressed to find a real definition anywhere. I’m going to put forth the definition as I understand it, and leave it open if someone wishes to prove me wrong.
Judicial Activism is the act of a judge ruling on a case outside of relevant statute, or with undue weight given to one statute over another for ideological reasons, and having the affect of influencing law. It is not the outcome that makes it activism, it is the process.
On day 3, Al Franken got a chance to question the judge, and did so by referencing a few specific cases. Most telling is the end of his questioning where he proceeds to tell the judge that activism is really just used by people to say they don’t like decisions a judge makes, and then goes on to ask her to define it. Sotomayor refused to define judicial activism because, as she put it, she doesn’t use the term. However, only a few minutes earlier, I believe she did define it, albeit in a more indirect way.
The entire exchange is interesting, and the few minutes that follow the clip above (starting at around 46:25) get into Franken’s thinking on activism in the court.
During the exchange, Franken argues that regulation of the internet in this case bring up an “overriding first amendment” issue. Sotomayor counters, very diplomatically, that the court looks at relevant case law, and specifically in this case which agency has the power to regulate as Congress intended. This is followed by Franken pushing on that there is this first amendment consideration, only to be told in no uncertain terms that, no, in fact to do so would be to say that one right or another is more important than another right.
In forcing this exchange, Franken unintentionally defines the very thing he says is difficult to define, Judicial Activism. He posits that the judiciary must consider the 1st Amendment above all other to come to the conclusion that there ought not be regulation. Clearly, this would be activism; stepping outside the relevant case law to find the right or law that matches one’s pre-formed decision to come to a conclusion. Even more impressively, it is Sotomayor who argues that it is wrong to do so, and in so doing, actually provides a definition she is later reluctant to provide.
