We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

United States Constitution, preamble

[W]e must never forget that it is a constitution we are expounding.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)

The summer 2009 confirmation process for Justice Sonia Sotomayor was not the first controversy over a Supreme Court justice, and it provides an opportunity to recall how Louis Brandeis, native of Louisville, Kentucky , was confirmed after a stormy process in the Senate. Brandeis, of course, became one of the most renowned justices of the Supreme Court.

Justice Sotomayor was the first Latina justice to be appointed, and Louis Brandeis was the first Jewish justice. Both were controversial for some of the same reasons.

On January 28, 1916, President Woodrow Wilson nominated Louis Brandeis to be a justice on the United States Supreme Court to replace Justice Joseph Lamar, who had died earlier that month. The nomination erupted into a four month battle fought within a subcommittee of the Senate Judiciary Committee.

Although some assume that the controversy was because Brandeis was Jewish (and that may have been a factor for some), the major objection was because of his reputation as an activist and a progressive. Before the nomination, Brandeis had taken on a number of progressive causes, ranging from labor relations, government corruption and private misuse of "other people's money," monopoly practices, and the "right to privacy." He opposed big government and big business.

As an advocate before the Supreme Court, Brandeis wrote what became known as the "Brandeis Brief" in the case of Muller v. Oregon (1908), which argued for the constitutionality of an Oregon law limiting working hours for women. Brandeis's brief was the first time social science and economic research was used in a case before the Supreme Court. Not only did he win the case, but this technique was later adopted by the NAACP in its cases challenging the separate but equal doctrine in higher education and public schools, culminating in the landmark decision of Brown v. Board of Education (1954).

It is not surprising that so many with vested interests were fearful of the potential impact on the Court of such an intelligent, articulate, and effective lawyer with strong progressive views.

Like the Sotomayor hearings (and other controversial hearings before hers), there was a great deal of behind-the-scenes maneuvering by supporters and opponents. The use of the media, even in a time without the internet and a 24/7 news cycle was significant. Some opponents argued that Brandeis lacked "judicial temperament." Clippings of many of the articles highlighting this controversy can be found in the law school's Brandeis Archives collection.

In spite of the opposition, Brandeis was approved by the Judiciary Committee (10-8 vote) on May 24, 1916, and confirmed by the full Senate on June 1 (47-22). He served on the Court until 1939, when he resigned at age 83, having served 23 years, and he died two years later in 1941. His remains are buried at the portico of the University of Louisville Louis D. Brandeis School of Law, named in his honor in 1997. The law school also adopts his example of public service — he had become known as "The People's Attorney" because of his advocacy for social justice causes on a pro bono basis. In 1990, the law school implemented a public service program, requiring students to complete 30 hours of service before graduating. More recently, in 2008, the law school opened its clinic, continuing the Brandeis legacy of commitment to public service.

So, were the fears of Brandeis's opponents borne out? Did he set aside judicial restraint to reach an outcome that fit his biases and views? Even though he remained an effective guidepost on social policy issues through his opinions (including many dissents), he remained true to his principles of judicial restraint and deference to state and local legislative bodies as the source of public policy. He viewed the states as laboratories of democracy, free to experiment with public policy and he recognized that local circumstances may affect social policy in different states.

The best example of his deference to state law is the 1932 decision in New State Ice Company v. Liebmann. This decision, which was the focus of the Brandeis Medal lecture presented by Justice Stephen Breyer in 2004, involved a state regulation of ice companies that could result in monopolistic power, something that Brandeis strongly opposed. Although Brandeis might well have thought that Oklahoma 's regulatory scheme was bad policy, he nonetheless, dissented from the majority, which struck down the law. His 31-page dissent, which has been cited more than 1600 times in Supreme Court decision and innumerable times in law review articles, addressed the fact that the state may well have had good reasons to implement this regulation, and the Court should defer to the state when "economic regulation and ordinary social legislation is at issue." This dissent is one of many examples Brandeis of using opinions to educate the public about important issues.

Americans often have been surprised by the decisions some Supreme Court justices have reached after they have been appointed. Justice Brandeis remained true to his philosophy of judicial deference to the legislative process. Only time will tell whether we will be surprised by the decisions of our newest justice.

The confirmation hearings raised the question of what kind of justice Sonia Sotomayor will be. I just published a study that revealed something interesting about her past opinions. The study examined the use of gender-inclusive language by ninety-six female and male federal appellate judges. I looked at several linguistic traits, including how judges handled "the pronoun problem."

In English, what grammarians call the "pronoun problem" arises when we use a third-person singular pronoun to refer to an unknown person. For example, we may say, "A lawyer should file his brief on time." An old rule-made up by Eighteenth Century grammarians-said the masculine "his" belongs in that sentence, even though it refers to an unknown lawyer who might be either male or female. Now that so many women are lawyers, it's a little jarring to read that a lawyer should file his brief on time. Because the generic masculine excludes half of the population, for the past forty years or so, many language scholars have recommended that writers avoid it. There are several ways to do that. One is to recast the sentence to avoid the pronoun altogether: "A lawyer should file a brief on time." Another is to use an inclusive pronoun pair: "A lawyer should file his or her brief on time."

One of my measures was judges' use of these pronoun pairs. In my sample, Justice Sotomayor, then a Second Circuit judge, ranked the very highest in the use of gender-neutral pronoun pairs. That suggests that she will be sensitive to framing her decisions in language that will be considerate of both women and men.

But will she be an "activist judge," as some critics said during the confirmation hearings? The very term "activist judge" is loaded. On its face, it appears to mean a judge who disregards precedent to reach whatever decision will fit his or her views. But the term is often used simply as a name to call a judge whose decisions displease the speaker.

One particular case illustrates the problems with inexact use of the term "activist judge." The Ricci case, a discrimination case out of New Haven , Connecticut , concerned a test administered to firefighters who wanted to be promoted. Ricci v. DeStefano, 129 S. Ct. 2658 (2009). When white firefighters scored highest on the test, minority firefighters threatened to sue on the ground that the test was discriminatory. So New Haven postponed any promotions and announced that it would look for a fairer test. White and Hispanic firefighters who had scored high then sued, alleging discrimination against them. The District Court held for the city, citing then-current law, which said an employer could use race-neutral means to avoid an employment decision that had a disparate impact on a protected group. Ricci v. DeStefano, 554 F. Supp. 2d 142, 157 (D. Conn. 2006). The Second Circuit, on which Sonia Sotomayor then sat, issued a short per curiam opinion, upholding what it called the District Court's "thorough and well-reasoned opinion." Ricci v. DeStefano, 530 F.3d 87, 87 (2d Cir. 2008). In short, the court was not "activist" but simply followed the current law.

The U.S. Supreme Court reversed the Second Circuit's decision, holding that the white and Hispanic firefighters did have a discrimination claim. 129 S. Ct. at 2681. Some said this showed that Justice Sotomayor had been wrong and was an activist judge. But on the contrary, it was the Supreme Court that announced a new rule, that an employer taking steps to avoid a disparate impact against a protected group must have "a strong basis in evidence to believe it will be subjected to disparate-impact liability if it fails to take race-conscious action." 129 S. Ct. at 2677. Thus the Supreme Court, not the Second Circuit, was being "activist" in changing the law.

There's nothing about the Ricci case or Justice Sotomayor's other decisions that suggests she will be some sort of "activist" extremist. On the contrary, I expect her to follow her past practices and be moderate, perhaps slightly left of center, on the court. In fact, I even predict I'll be disappointed when at least one of her decisions won't go as far as I'd like in upholding the civil rights of women or minorities.

Alexander Pope’s oft-quoted 1709 aphorism, “Fools rush in where angels fear to tread,” is quite the warning to those who would dare candor in the face of the conventional wisdom of their age to say no more than the “safe” or the guarded answer. And so perhaps it should have come as no surprise that, like many before her who have been nominated to the Supreme Court in the last 20 years, then-Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit came before the U.S. Senate Judiciary Committee this past summer for her confirmation hearings and said . . . little. Little that was instructive, illuminating, interesting, or helpful to the greater understanding of our Constitution or the Court’s role in interpreting it. Little that would teach us something about what we can actually expect from a Justice Sonia Sotomayor based on her record at the court of appeals. I come today neither to praise, nor to bury Justice Sotomayor – but to lament her performance at the confirmation hearings as the culmination of what they have become, and with only a faint hope that this may possibly represent the nadir of this trend.

Justice Sotomayor began with this seemingly innocuous attempt to reassure the Senate that she will exercise appropriate judicial restraint: "The task of a judge is not to make law. It is to apply the law.” Far from reassuring, though, the comment was a disturbing sign that Sotomayor was going to refrain from defending the perspective on judging that has marked her jurisprudence on the Second Circuit, and which should continue to guide her on the Supreme Court.

The fact is, of course, that of course Supreme Court Justices make law. Their decisions create the law of the Constitution that binds lower courts – and Presidents and legislators and all the rest of us. If Justice Sotomayor is not willing to use the occasion of her confirmation hearings – the one moment when she had more of the public spotlight than she is ever likely to have again – to make even that point, then it is unsurprising that she was not up for the project of defending the idea (made repeatedly in her past speeches) that it both inevitable and all to the good that judges should bring with them to the task of deciding cases their experience and their empathy. Nevertheless, I was disappointed when she spent most of the hearings accepting a mechanistic version of judging that created the impression that it is almost a robotic act in which the judge applies law to the facts and arrives at some objective conclusion. To hear Justice Sotomayor testify and answer questions, one would have thought there is little difference whether she or Chief Justice Roberts is going about the business of constitutional interpretation.

Perhaps the greater candor I yearn for would constitute an example of a fool rushing in. But I believe a nominee could explain that judging is a mix of the honest attempt to interpret the law as objectively as possible, while also understanding that each Justice bring to that task a mix of experiences, subjective views of the case and the litigants, and especially contrasting views about how to undertake the task of interpretation itself. That kind of honesty would, over time, lead to a greater understanding among the public about how the Court really interprets the Constitution, and how the Court itself functions at the apex of the judicial branch. The Sotomayor hearings did nothing to advance that cause.

Judge Sotomayor's confirmation as the 111th Associate Justice of the United States Supreme Court was a landmark event — the first Latina and only the third woman to sit on the High Court — this seminal accomplishment is a true testament to the vibrancy of our political community and the triumph of inclusion.

The confirmation hearings were also a litmus test for colorblind constitutionalism. All of the United States Supreme Court's opinions on race have been reverse discrimination claims advanced by white plaintiffs who allege unfair treatment because race was used to exclude them. Ironically, Justice Sotomayor's hearings morphed into a reverse discrimination case against her, and she had to delicately navigate identity, race, and the power of judicial decision-making. Her "Wise Latina Woman' comment had to be neutralized. So, Justice Sotomayor had to assure the inquiring conservative Senators that her identity fit within the mainstream (and that she viewed alternative race-conscious perspectives skeptically); she had to consistently ignore her race and embrace the rhetoric of liberal individualism; and she had to adopt a stance of a neutral referee when she explained her approach to judicial decision-making. The public should know that judges make policy within the context and structure of the Constitution. There are structural limits in Articles I, II, and III of the Constitution.

The phrase, "Wise Latina Woman," was mischaracterized and the politicized confirmation hearings only served to further distort its meaning. Justice Sotomayor did not mean that she would judge in a particular way, adopting an outcome determinative approach to decision-making. Rather, empathy truly means that rights, obligations, and claims will be taken seriously. Beyond the principles and doctrines, there are real life issues with far reaching impact on the lives of countless Americans. A jurist should understand and feel the significance of the awesome power of decision-making. Alternative viewpoints should be included. Think of what would have happened if other perspectives had been included in infamous decisions like Dred Scott, Plessy v. Ferguson, Buchanan v. Warley, and Buck v. Bell. Because there were no women or people of color on the bench when these decisions were handed down, they advanced a skewed and narrow view of our nation.

Alternative perspectives are essential to our constitutional democracy. Justice Sotomayor will soon add her voice to the Court's jurisprudential dialogue on race. We must dismantle deeply embedded systemic inequality. The Court's recent pronouncements on race in the school cases and the firefighters case serve as stark reminders that colorblind constitutionalism does not address the structural nature of race and inequality.

It is impossible to predict where Justice Sotomayor's jurisprudential path will take her, but I am sure that she will approach her duties with empathy, courage, and a commitment to justice. There is power in inclusion.