The nomination of Judge Sotomayor to replace Justice David Souter on the U.S. Supreme Court has set the stage for debate not only in the in the Senate confirmation process, but also within the Press and citizens across the Nation.  Fox News has provided video where Judge Sotomayor states:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

The quote (repeated by Judge Sotomayor in several variations over the years) has driven a highly charged debate in the press and across the country with racial discrimination charges from both Conservatives and Liberals (Progressives).  Her ancestry and sex should be immaterial in her nomination and the confirmation process, yet it is the center of attention.  What has not occurred yet, and should be the focus of discussion, is a determination if Judge Sotomayor is qualified.

The constitution does not provide specific qualifications for Federal Judges and Supreme Court Justices; rather it places the responsibility for determining the makeup of the Supreme Court and the creation and requirements for Subordinate Federal Courts in the hands of Congress. The Congress has expanded, and even decreased the size of the Supreme Court over our history. The Senate confirmation process for judges and justices has been highly politicized for most of this Nations existence. Given the virtual silence of the Constitution on the qualifications and confirmation of Supreme Court Justices; the determination of qualification must be established by evaluating other law as established by Congress.

An oath or affirmation of Office is specifically required by the Constitution of the United States.  Article 6 addresses debts, supremacy, and oaths. The last section reads:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Judges and Supreme Court Justices are required to be bound by an Oath or Affirmation, the constitution does not provide the verbiage for oaths of office, rather Congress has established these with minor modification throughout the history of the United States. The current oath of Office for Justices and Judges is identified by Congress in 28 U.S.C., § 453, Oaths of Justices and Judges. Release date: 2003-05-15. Each justice or judge of the United States takes the following oath or affirmation before performing the duties of his office:

“I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States.  So help me God.”

This oath or affirmation drives a basic question, “Does an oath of office retain any relevance for elected officials and appointed positions in today’s United States?” It is a constitutional requirement, but one that seems to have become a Performa ritual by many in public office rather than the statement of a deep felt commitment of responsibility and accountability for those who would lead and serve our nation.

If we as citizens continue to view the oaths of office for our elected and appointed officials as binding; then we must ensure that they are honored and enforced.  In the case of Judge Sotomayor, I believe she is unqualified to serve as a Justice on the Supreme Court.  Her repetitive statements over the last two decades indicate that Women, and Latina Women in particular, are superior to others (such as White Men). This calls into question her ability to honor her oath of office as a judge to “…   do solemnly swear (or affirm) that I will administer justice without respect to persons, and…“. Her public statements indicate an inability to views others impartially and equitably, and by extension can she act impartially as a Justice?

Judge Sotomayor has also said:

“The saw is that if you’re going into academia, you’re going to teach, or as Judge Lucero just said, public interest law, all of the legal defense funds out there, they’re looking for people with court of appeals experience, because it is — court of appeals is where policy is made. And I know — and I know this is on tape and I should never say that because we don’t make law, I know.”

This leads me to the observation that if confirmed to the Supreme Court she will become an activist justice making policy from the Supreme Court bench.  An activist judiciary by definition cannot uphold his or her oath of office, particularly the last part of that oath reading: “…that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States.  So help me God.”

The constitution does not provide for the Judiciary to make policy or make law. If it did provide for that capability there would be no need for the Legislative or Executive branches of our Federal Government. If the judiciary were legitimately able to make policy and law there would be no checks and balances in our Federal Government. Our constitution would be meaningless, a document that can be simply dismissed as irrelevant by a Supreme Authority that makes law and policy as it sees fit.