We’re into the last day of questioning of Judge Sonia Sotomayor by the Senate Judiciary Committee. And while there are a lot of questions for her, there is also much speechifying by committee members, with the Supreme Court nominee not always having the chance to respond or react.
Sen. Lindsey Graham, R-S.C., expressed concerns again this morning about “society being changed by nine unelected people who have a lifetime appointment.”
“There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box,” said Sen. Graham, who then cites the one case where even conservative Republicans would now agree that judicial activism was necessary.
“Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state,” Graham said. “And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson [apparently a reference to the late Judge Frank M. Johnson of the U.S. Court of Appeals for the 11th Circuit] in the political arena.”
“But the court went through an analysis that separate was not equal,” the senator continued. “It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court’s opinion, even though it was contentious and literally people died.”
Graham then turned to one of those “very difficult changes that are percolating in America,” the question of gay marriage, without giving Judge Sotomayor the chance to chime in on his comments about Brown.
A version of this news article first appeared in The School Law Blog.