Will Judge Sotomayor Interpret Law or Make Law?

FPN Policy Analyst Alexander Mason is participating in an effort to ensure every United States Senator is reminded of the true duty of the US judicial branch, especially with regard to the duties of the Supreme Court. Mason has signed on to a letter sent to each senator that details the constitutional duties of Supreme Court justices, namely the duty to exercise only judicial power, not legislative power. In other words, judges should interpret law, not make it.

The letter also asks senators to reject Sonia Sotomayor’s nomination to the Supreme Court if it becomes apparent she affords more power to the judicial branch than is constitutionally defensible.

Here is the letter sent to every United States Senator:

Leaders Advocating Use of Constitutional Standard
In Senate Consideration of Judge Sotomayor

July 10, 2009

The Honorable Ben Nelson
United States Senate
720 Hart Senate Office Building
Washington, D.C. 20510-2704

Re: Application of the “Constitutional Standard” to Judge Sonia Sotomayor

Dear Senator,

The Constitution vests United States Senators with the duty to “advise and consent” as to any Presidential appointments to the United States Supreme Court. Accordingly, you and your colleagues are presently considering whether to confirm President Obama’s nominee, Judge Sonia Sotomayor, as the next Associate Justice of the Supreme Court.

The position of Justice of the United States Supreme Court is one of the longest serving and most powerful positions of trust in the United States, and any nominee should demonstrate that he or she will abide by the constitutional standard of a justice.

The constitutional standard for a Justice of the United States Supreme Court is fairly simple and should be non-controversial. The prospective Justice must show that she will exercise only judicial power, and not legislative power; that she will not attempt to legislate from the bench, but rather will limit herself to exercise the proper Article III power of deciding cases.

The Judicial Article of the Constitution provides: “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, [and] the laws of the United States …. ” Art. III, Sec. 2 (emphasis added). But, the Legislative Article of the Constitution provides: “All legislative powers herein granted shall be vested in a Congress of the United States ….” Art. I, Sec. 1 (emphasis added).

In short, the first duty of a judge is to exercise “judicial power,” not “legislative power.” All legislative powers are reserved exclusively to Congress. Judges must decide cases according to previously enacted legislation from the elected representatives of the People. Accordingly, judges cannot legislate from the bench, and judges may not substitute their own view of “empathy” for the American People’s empathy.

For the above reasons, we respectfully request that you ask Judge Sotomayor to confirm on the record that she believes that judges have no authority to legislate, nor to make policy. Further, we request that you ask her to affirm on the record that she will not attempt to usurp legislative power, and will only exercise the legitimate judicial power of deciding cases according to the “legislation” and “policies” of the peoples’ elected representatives.

Should she fail to make the above affirmations, or should her record demonstrate that she has previously refused to limit herself to exercising only her legitimate judicial power, then we ask “consistent with your duty to the Constitution and to your constituents” that you vote against her confirmation. However, if she does demonstrate with her words and her record that she will respect the judicial role and not attempt to exercise legislative power, then we ask that you give due consideration to her nomination.

Respectfully,

Phyllis Schlafly, President & Founder, Eagle Forum*
Manuel Miranda, Third Branch Conference*
Mathew D. Staver, Liberty Counsel, Founder and Chairman, and Liberty University School of Law, Dean and Professor of Law*”¨
Rick Scarborough, Vision America*
Janet Porter, President, Faith2Action*
Phillip Jauregui, Judicial Action Group*
Kay R. Daly, Coalition for a Fair Judiciary, President*
Michael Thielen, Republican National Lawyers Association, Director*
William Greene Ph.D., President, RightMarch.com*
Virginia Armstrong, Ph.D., National Chairman, Eagle Forum’s Court Watch*
Ron Shuping, The Inspirational Networks, Exec. Vice President Programming*
Dr. Jody Hice, Let Freedom Ring Ministries*
Gene Mills, Louisiana Family Forum Action, President*
Tom Shields, Chairman, Coalition for Marriage and Family*
Ronald Konopaski, United for Life of San Francisco, President*
Michael R. Long, New York State Conservative Party, State Chairman*
Don Feder, Don Feder Associates, President*
Bill Johnson, American Decency Association*
Pastor Paul Blair, Reclaiming Oklahoma for Christ
Mike Coley, Saved By The Blood Ministries*
Alexander Mason, Family Policy Network, Inc., Policy Analyst*
Mark Williamson, Founder and President, Federal Intercessors*
Kris Mineau, President, Massachusetts Family Institute*
Kent Ostrander, Executive Director, The Family Foundation (Kentucky)*
Fran Bevan, Pennsylvania Eagle Forum*
Dr. Carl Herbster ““ AdvanceUSA*
Pastor Paul Blair, Reclaiming Oklahoma for Christ, Founder*
Bobbie Patray, President, Tennessee Eagle Forum*
C. Preston Noell III, President, Tradition, Family, Property, Inc.*
Dr. Gary L. Cass, Chairman and CEO, Christian Anti-Defamation Commission*
Gary Bauer, American Values*

[NAMES OF LEADERS]
“¢Organizations listed for identification purposes only.