In a speech to the Federalist Society Thursday as part of its annual conference, Supreme Court Justice Samuel Alito Jr. spoke of the importance of judges interpreting "what the law is and not what it should be." He said, "That should be the basic starting point for anyone discussing the role of federal courts. But this basic starting point has been and always will be under attack, sometimes subtly and sometimes overtly."
Alito stood up for his newest colleague, Justice Sonia Sotomayor, who Alito said had been criticized during her confirmation hearings for repeatedly saying that her tenure on the high court would be characterized by fidelity to the law.
Referring to her opening statement, Alito said, "There was not a word in that statement that was controversial, but that's not how it was received by her progressive audience." He cited as an example a post on the Federalist Society's Web site by Georgetown law professor Louis Michael Seidman, in which Seidman wrote, "I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified."
"And those were the words of one of her supporters," Alito said. "I had a lot of opponents, but I never had any supporters like that."
Alito also referred to the recent decision Ricci v. DeStefano, in which the Court held that the city of New Haven, Conn., violated Title VII by discarding the results of a firefighter promotion test that would have led to no minority promotions. The case became one of the primary themes of Sotomayor's confirmation hearings because as a judge on the 2nd U.S. Circuit Court of Appeals, she voted in the city's favor.
Alito said that, although he disagreed with Sotomayor's 2nd Circuit vote and Justice Ruth Bader Ginsburg's Supreme Court dissent, they and other colleagues with whom he has disagreed during his time as a judge, were not "fools or acting in bad faith." He applauded Ginsburg for not basing her decision on "sympathy" for the plaintiffs.
"Sympathy is not what Ricci, Vargas, or any of the other firefighters have a right to demand," Alito said. "What they have a right to demand is even enforcement of the law."
This article first appeared on The BLT: The Blog of Legal Times.