America’s legal tradition is the most principled, reliable, and open of any society in history. The corner stone of this tradition is the U.S. Constitution, which William Gladstone, four-time British Prime Minister, called “the most wonderful work ever struck off at a given time by the brain and purpose of man.” By its nature, it is an enduring document. Yet, its reliability will soon be compromised by the placement of a new Supreme Court Justice.

Judge Sotomayor has downplayed her remarks that courts of appeal are “where policy is made.” I am particularly sensitive to this issue, as this is the sort of unconstitutional idea that first compelled me to run for office. Back then, a Judge in Missouri ordered a city to levy taxes to build his dream school system. The idea was unconstitutional then, and it is equally foul to principled government today.
Policy-making from the bench is anti-Constitutional to our republic.

Perhaps more troubling is that too often as of late we have seen activist judges confuse empathy with policy-making from the bench. Whether it has been removing “under God” from the Pledge of Allegiance, or justice has become a lottery of what the judge sounds like, their background, education, politics, or faith. This standard, personified by Sonia Sotomayor, is anathema to our Constitution and democratic society.

Our Constitution clearly states the sole source of legislative power in Article I, Section I:

"All legislative powers herein granted shall be vested in a Congress of the United States"

Simply put, it is the role of the legislature to implement policy and create the laws. Judges, must stick to the law faithfully, working tirelessly to ensure that judgments do not step beyond the framework set out by the legislature.

President Obama has stated that empathy is “essential” for a Supreme Court justice. I can only assume that President Obama nominated Judge Sotomayor, in part, because she embodies empathy. Empathy is a wonderful personal trait. It does not, however, qualify anyone to interpret or apply the Constitution. When there is empathy for one, there will be prejudice toward another.

When empathy is the standard, judges can twist justice to suit personal prejudices. Inevitably, cases would be decided not on the law and the facts but on towards whom a judge’s empathy is directed. Hope for justice should not hinge on what the judge looks like, sounds like, their background, education, personal politics, and faith or irreligion.

There is no doubt that Judge Sotomayor has every right to exercise her constitutional right to participate or influence the political life of America – but it must be in the proper context. If Judge Sotomayor is intent on making policy, I would invite her to select a public office, begin a campaign, win a race, join a legislative body and begin appropriately influencing policy.

We have seen the affects of judicial activism from Dred Scott, prayer in schools, Roe v. Wade to “under God” being stripped out of the Pledge of Allegiance. As Thomas Jefferson once wrote, “One single object ... [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation."

Cross-posted from Smart Girl Politics.