July 2009

Georgetown University Law Professor Louis Michael Seidman comments in today's New York Times that Judge Sonia Sotomayor adopted, during her confirmation hearings, the "official ideology" about judging. James R. Copland, of the Manhattan Institute, more or less says the same thing when he describes her remarks as "traditionalist."

I wonder if they are both mistaken.

I heard Judge Sotomayor say repeatedly that the policies and values underlying and supporting the legal text before the Court were key to understanding its meaning and reach. Coupled with her insistence on fully understanding the facts, especially so she could explain to the parties the why-and-how of her analysis and holding, suggests to me an approach that could be most like that of Justice Thurgood Marshall. As I wrote in a brief essay in the John Marshall Law Review, Justice Marshall "considered the gory details of trial records in the light of his own experience and saw things other Justices would overlook, misunderstand, or undervalue."

It sounded to me that Judge Sotomayor approached the facts in the same way with the same concern (dare I say empathy).

It's hard for me to watch the Sotomayor confirmation hearings, not only because of the Senators' generally unfocused, rambling questions. Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.

I am aware of and share the priority of getting Sonia Sotomayor seated on the Supreme Court. But there is a big gap of possibility between safely doing that and the surrender we're watching.

The senators of both parties and Judge Sotomayor often seem to be in a debate over who has the most passive vision of judging. Listening to them, one might think judges don't make decisions at all but simply write down legally required results, and have no apparent need for judgment or experience.