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Leading SCOTUS Candidate: Justices Need to Make Up Law (Video)

Morgen on May 14, 2009 at 10:08 am

According to recent reports, President Obama is expected to name his nominee to replace David Souter on the Supreme Court very soon. We broke the news here just a couple of weeks ago regarding a controversial past statement made by one leading candidate, Judge Sonia Sotomayor. Judge Sotomayor is still considered a possible candidate among with several others, according to the latest reports.

One of the other leading candidates is considered to be Diane Wood, a federal judge on the U.S. Court Appeals for the Seventh Circuit, and a professor at the University of Chicago School of Law. According to a profile published this week in the NY Times (a trial balloon?), Judge Wood has demonstrated herself to be reliably liberal, and to have the intellectual strength and force of personality to stand up against strong conservative judges. In other words, she may be a good pick for President Obama given that the current make-up of the Supreme Court is weighted slightly towards conservatives (a point I find debatable).

If Judge Wood does receive the nomination, based on my high level review of her apparent judicial philosophy, I believe her views on the role that international law may play in decision making by U.S. Courts may ultimately generate the most controversy in her confirmation process. I plan on sharing some additional background details on this in a future post.

But first, it appears that Judge Wood may have had her own “Sotomayor moment”. Back in 1998, in a speech made honoring Justice Harry Blackmun (whom she had clerked for earlier in her career), she had something very interesting to say about the concept of “judicial activism”. Watch:

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In a world of discretionary jurisdiction, the challenge for the [Supreme Court] Justices is to accept only cases of national import, cases where law, to put it bluntly, might need to be made up, but on the other hand not to be judicial activists, whatever that may mean.

Uh…Judge Wood, might I make a suggestion regarding the meaning of “judicial activism”? JUDICIAL ACTIVISM = MAKING LAW UP FROM THE BENCH!! Is this really that difficult of a concept!?

And a note to our conservative legal friends and scholars. I can already imagine that some of you will jump in here and downplay this comment by Judge Wood. “Leave the judicial analysis to those of us who know what we are talking about. There is nothing controversial whatsoever about this – she’s only stating what is factually true. Of course the Supreme Court makes law – what do you think legal precedent is?” Etc., etc., etc.

Can I ask a serious question? If you believe that making up law is an appropriate role for the Court, what exactly then is the difference between a conservative and a liberal judge? 

Clearly we have had Supreme Court decisions where the Court has essentially “made up” law. But just because something is true as a matter of record, does not make it right. Do the concepts of “judicial restraint” and “original intent” exist only as fantasies? You can call me uninformed or naive, but it seems to me that cases of “national import” are exactly the type of cases where we would not want our judges to fabricate law out of thin air.

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Category: Politics |

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