By Congressman Joe Pitts

President Obama has nominated Judge Sonia Sotomayor to replace Justice David Souter on the Supreme Court.  There is no doubt Sotomayor’s personal story is compelling, much as President Obama’s is.  But Judge Sotomayor’s judicial temperament, not her socioeconomic background, ought to be the yardstick by which she is measured for confirmation to the highest court in the land.  We will learn more about Judge Sotomayor in the coming weeks and months, but I already have grave concerns about her ability to rule impartially and with restraint.

Supreme Court nominations were once a routine exercise.  Today, Supreme Court nominations resemble something closer to ideological warfare.  This is unfortunate, and it has happened because too many judges lack the restraint their job requires.

We have three branches of government: Congress creates the law, the President carries it out, and the courts ensure that it is applied faithfully.  A judge is like a baseball umpire.  His job is to call the balls and strikes, not to decide how big the strike zone is.

Unlike the President and Congress, the Supreme Court is insulated from public opinion.  Justices are not elected, and they serve for life.  When it comes to the court’s rulings, there is no veto and there is no appeal.  A court that stops acting like an umpire and starts acting more like the Commissioner of Baseball is a court with almost unlimited power.

Think about it. The Supreme Court has ruled that governments can seize private property from one owner and give it to another (Kelo v. New London, 2005), it has decided a presidential election (Bush v. Gore, 2000), and it has turned the 14th Amendment’s language guaranteeing the rights of citizenship for former slaves into a right to abortion on demand at any stage of a pregnancy (Roe v. Wade and Doe v. Bolton, 1973).

Each of these cases has been sharply criticized by the left or the right because of their policy implications.  But the court should not be making policy at all!  It is not the Supreme Court’s job to legislate.  Any time and every time it does so, it is literally acting as a dictator, because the people have no recourse when they disagree (on constitutional cases). 

Exactly for that reason, activists have learned that democracy and constitutional intent are no longer obstacles for them.  Judges who are willing to legislate from the bench trump everything.  There is no veto.  There is no appeal.

Personal feelings and political ideology have no place on the bench.  We are all familiar with the classic image of Justice holding a scale and wearing a blindfold.  On the portico of the Supreme Court building is the inscription “Equal Justice Under Law.”  Every American, regardless of their race, gender, ideology, or even criminal record deserves equal treatment in court.   Any bias, positive or negative, is unacceptable.

There is only one way to prevent judicial activism, and that is to stop it before it starts.  That has to be done by presidents who nominate humble, restrained, and careful judges who respect the Constitution and who will not legislate from the bench. 

By nominating Judge Sotomayor, President Obama has shown his cards.  He intends to appoint activists instead of umpires to the court.  Take, for example, something she said in 2005.  “The court of appeals is where policy is made,” she said to the Duke University Law School.  She then said, laughing, “And I know this is on tape and I should never say that.”

In 2001 she flatly declared her inability to be objective and fair.   She did so in a statement that all at once betrays a racial and gender preference, contradicts the first woman on the Supreme Court, and denies objective truth.  She declared that “our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…I am also not so sure that I agree with the statement. First, ….there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

We will learn more about Judge Sotomayor’s desire and ability to rule impartially in the weeks and months ahead.  This will go a long way toward determining her fitness to serve a life term on the U.S. Supreme Court.

Congressman Joe Pitts represents the 16^th Congressional District of Pennsylvania.

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