The Personal is Political, Not Judicial

by Lara S. Kaufmann, Senior Counsel, 
National Women's Law Center

This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.

This morning, Senator Tom Coburn questioned Judge Sotomayor on a number of topics. While I have been watching the hearings mostly to hear what is said on women’s rights issues, my ears perked up when he was talking about the Second Amendment, as he went beyond Constitutional doctrine and asked:  “As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense?”  In response, Judge Sotomayor explained that “the issue of self- defense is usually defined in criminal statutes by the state's laws,” but that was not enough for Senator Coburn. He went on: “But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?” Again, Judge Sotomayor’s response was based on the law; she said that did not know if that legal question had ever been presented. Senator Coburn continued his badgering:  “I wasn't asking about the legal question. I'm asking about your personal opinion . . . I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense? . . . Does what the Constitution -- how [the American people] take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you're under attack?”

Judge Sotomayor then gave a hypothetical under New York criminal law, with which she said she was familiar from having been a prosecutor for many years. But what she could also have said is that her personal opinion on whether or not people have a right to self-defense does not matter – hasn’t that been the point of much of the testimony? Just as her interpretation of the law does not depend on the fact she is female or Latina or in her 50s, it does not matter what her personal opinion is on the right to self-defense. What matters is the law, and her ability to understand and uphold the law and apply it impartially. How the American people see the Constitution is interesting, but that is not what should guide a judge in his or her decision making. There is a reason we strive to have courts with “bright legal minds” who are experts at understanding the law and applying it, without personal bias, to the factual situations presented by cases.  This is particularly true for federal courts, which are supposed to be insulated from politics and thus by design are comprised of judges who are appointed, not elected.