One of the comments repeated most frequently during discussion of Judge Sotomayor's nomination is the assertion that judges should only apply the law and not make law. It is often advanced in figurative terms to the effect that judges should be like umpires who merely call balls and strikes within the existing rules of the game without interpreting any of the existing rules or making up any new ones.
This stale comment, having all the effervescence of champagne dregs the morning after, is generally offered up as though it were a self-evident truth invulnerable to any conceivable challenge, rather than a crabbed and highly selective viewpoint reflecting a deeply ahistorical view both of the Anglo-American legal tradition in general and of the constitutional authority of our judiciary in particular.
While we are accustomed to dealing with statutes and their application and interpretation, by no means all of our law is legislatively enacted. Most of the law of torts, a great deal of the law of contracts and a significant portion of the law of real property, for example, have been developed through and depend upon the accretion of judicial precedent over long periods of time. This is referred to as the common law. It forms a major part of the heritage of our judicial system, and a major portion of the law that currently governs us.
The principal characteristic of the common law is that it is judge-made law. The common law aspects of our current legal system do not involve judges deciding whatever they want, whenever they want to, based on whim and personal bias. They involve judges considering carefully how to understand, interpret and apply existing judicial precedent when confronted by novel fact patterns that pose issues of first impression.
While the Constitution governs all cases, and while statutes must be given the deference to which they are entitled consistent with the Constitution, it also remains the case that, in the judiciary's exercise of its powers under Article III, "It is emphatically the province and duty of the Judicial Department to say what the law is." That remains as true now as it was when Marbury v. Madison was decided in 1803.
The essential roles of the common law, and of the judicial function of articulating such law through precedent, are implicitly recognized by the brevity of the provisions in Article III of our Constitution concerning the authority and limitations of our judiciary, as compared with the Constitution's much more detailed and prescriptive provisions concerning the powers and limitations of the executive and legislative branches. The framers of the Constitution recognized and respected the common-law roots not only of much of our law but of our judiciary, and trod lightly in defining its powers in order to avoid circumscribing them unduly.
It is instructive that Article III of the Constitution recognizes the judicial power of the United States, as exercised by the U.S. Supreme Court, expressly in terms of "jurisdiction" -- which, translated, literally means the power to enunciate the law, the power which the judicial branch of our government has asserted and exercised since Marbury was handed down in 1803.
There are those who argue that the sole role of judges is to apply statutes crafted by legislators. They take the view that judges act as humble mechanics who merely lubricate the intricate machinery of the law as designed by the superior engineering genius of legislators. They cling with near religious fervor to the credo that judges neither possess, nor should be allowed to possess, any power to make law through judicial precedent. Those who do so. however, advance this position in derogation of the "judicial Power" and "jurisdiction" recognized by Article III of our Constitution, in derogation of the status of our Supreme Court and our judiciary as a coequal branch of our government, and with willful disregard for the deep roots of the role and functions of our courts in the common law and in Anglo-American legal history.
It is worth remembering that one of the leading authorities on the existence and meaning of the common law in our judicial tradition, and on the precedential powers of our judiciary, was the late Oliver Wendell Holmes, Jr., who served as an Associate Justice of the U.S. Supreme Court from 1902 to 1932. Holmes was hardly the image of an ivory-tower liberal inclined to disregard the importance or meaning of the Constitution. Repeatedly wounded in action at Ball's Bluff, Antietam and Fredericksburg as an officer in the Twentieth Massachusetts Volunteer Infantry during the Civil War, while defending the Constitution at the risk of his life against those who had betrayed and levied war against it, he later served on the U.S. Supreme Court until he was 90. He was interred in Arlington National Cemetery, and whether one agrees with his judicial reasoning or not, few others could lay any greater claim of entitlement to the honor of resting there.
It is highly doubtful that Justice Holmes would have argued that judges can simply make things up as they go along based upon whim and bias. He clearly recognized the role of common law in the development of legal principle through judicial precedent, however, including some of the most important principles in our Constitution. He would likely have taken the view that courts and judges do possess the power to say what the law is by interpreting its meaning, and to establish judicial precedent, when presented with issues of first impression.
So if you wish to argue that judges should only apply the law as made by legislators, and should never make the law, you are free to do so. It is an unpersuasive argument, one not supported by our history, our Constitution, or long established judicial interpretation of our Constitution, but you are free to assert it if you wish. If you consider it to be a persuasive reason to consider Judge Sotomayor unfit to serve on the U.S. Supreme Court, however, you are only deluding yourself.
You are lawyers, so you look at this in a certain way. To me it appears much more simply explained through psychology. Sotomayor is an ambitious person of ordinary abilities who enjoys attention, praise, and a feeling of importance. She waved the race flag and made racist comments at the point in her career in which they brought her approval (and therefore power)from her race group's organizatons. Now, she wants a better job and a place in history, so she is changing her tune for the hearings.
Which is the real Sotomayor who will make decisions on the bench? I suspect her Supreme Court career will involve lots of appearances at Latino functions because she needs to be praised as the achieving queen bee. And socializing in those situations will tend to make the racist Sotomayor reappear.
Or she may choose the Supreme Court and its history as her new peer group and rise to her new status as best she can.
Only time will tell, but I think there must be less psychologically conflicted and more intellectual people out there who would be a better choice for such a powerful position.