Sotomayor Nomination

on May 28, 2009 at 7:00 AM, updated May 28, 2009 at 7:22 AM
Supreme Court nominee Sonia Sotomayor

Upon hearing the news and initial commentary on President Barack Obama's choice of Judge Sonia Sotomayor for the Supreme Court, I was reminded of the grade I received in one of my college classes.

I hadn't finished the coursework by the time finals rolled around, so my professor generously penned in a grade of "I" on the official record.

"I'm giving you a grade of I," she added in the margin. "which stands for intentions, good ones, with which the road to hell is well paved."

Sotomayor, whose name President Obama announced (or see here) on Tuesday, certainly is a jurist of good intentions - and a person with a compelling life story.

The daughter of immigrants who arrived from Puerto Rico, Sotomayor grew up in a Bronx, New York, housing project. After her father died, she was raised by a single mother.

Overcoming great odds, she went on to graduate from Princeton University and Yale Law School. She then began a career in private practice, as an assistant district attorney and as a district court and appeals court judge.

Sotomayor is acutely aware of her ethnic heritage. Her senior thesis at Princeton, for example, focused on the first democratically elected governor of Puerto Rico. If confirmed, she would be the first person of Hispanic background to sit on the court.

Given her long and hard struggle, and her passion for her background, some have expressed concern that Sotomayor may have a difficult time objectively applying the Constitution.

That concern arose when President Obama said this about a replacement for David Souter: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives."

Surely, the temptation to render personal opinions as law, to "right wrongs," to "legislate" from the bench, as it were, will be strong.

There is at least some cause for concern, based on Sotomayor's public statements. She has suggested that her Latina background may factor into her court decisions.

And during a panel discussion at Duke University School of Law, Sotomayor conceded (laughingly, and before a sympathetic audience) that public policy is often made on the appeals court bench. (See here for the You Tube video.)

Or, as Sen. Jeff Sessions, a Republican from Alabama, put it, "We must determine if Ms. Sotomayor understands that the proper role of a judge is to act as a neutral umpire of the law, calling balls and strikes fairly without regard to one's personal preference or political views."

Perhaps to assuage similar concerns from conservatives, some news accounts included a statement from Sotomayor that suggested that she might be sympathetic to the "strict constructionist" approach prized by conservatives.

"I don't believe we should bend the Constitution under any circumstance," Sotomayor said a dozen years ago during a hearing on her nomination for a seat on a court of appeals. "It says what it says. We should do honor to it."

It is this issue that is at the heart of whether she should be confirmed. Can Sotomayor objectively apply the text of the Constitution, without "bending" it to assert her own personal preferences? Can she forego good intentions and simply apply the law?

From a conservative point of view, Supreme Court justices sit on the bench to read the text, and not to use the text as a pretext for imposing their own personal or political views.

That said, I would suggest that the biblical example of how to read the Bible text gives a good insight into just how the Constitution should be read.

To get the most out of the biblical text, it's best to read the text literally. Some things are allegorical, to be sure, but it is not playing fair to impose one's own agenda. In other words, agree with the text or not, the fair-minded approach is to take the words and meaning at what they plainly mean.

Let's take an example, and show the difference between approaching the text literally (and honestly) and, by contrast, "legislating" into the text.

Our example: agree or not, the biblical text clearly states that homosexual behavior is wrong (literally, "sinful") and therefore, that so-called "gay marriage" is wrong and a contradiction in terms.

My point here is not to argue about the definition of marriage. Rather, I want to show that one must respect the text - both as someone approaching the Bible text, and, by extension, as a justice approaching the Constitution.

(The difference, from a believer's point of view, is that the biblical text is God-breathed and inerrant, that is, without error, while the Constitution is the imperfect work of men. But the analogy of how we read the texts is still helpful.)

In the case of the Bible, those who passionately favor gay marriage try to impose their personal opinions on the text. Instead of taking the clear and plain meaning of the text at face value, they re-invent the text, saying a value of "love" overrides the black-and-white meaning of the text, which speaks against homosexual behavior.

(I won't re-argue the plain meaning of the biblical text on homosexuality. For those who are interested, see my long-ago posts here, here or here .)

My point is that, much like re-inventing the biblical text leads to results that are well-intentioned, but wrong and unjust, so does reinterpreting the text of the Constitution.

In the same way that the biblical text sets the rules for the kingdom of God, so, too, the text of the Constitution sets the rules for the secular political society.

Imposing one's own personal "improvements" on either text is dishonest, and makes for bad public policy.

There's a funny but true saying among Bible students: "If you torture the (Bible) text long enough, you can make it confess to anything."

When interpreters fall into that temptation, such "torture" is usually done with the best of intentions.

Sometimes, the "torture" is done from a good (but misguided) heart: those who disagree with what the text says try to make it more "compassionate" or "broad-minded." At other times, the "re-working" of the text is done from a political or sexual motive, as in the case of gay "marriage."

In my view, a similar principle operates as justices apply the Constitution. The founders carefully wrote the document, a good framework for our civil society. And after the Civil War era amendments were added, the Constitution - in its plain, original meaning - provides a just basis for how our society operates.

And that is why those who will decide whether Sonia Sotomayor should sit on the nation's highest judicial bench should carefully evaluate her temperament and approach to the text of the Constitution.

Maybe my biblical example will help.