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Bench Memos

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Two Thoughts on Sotomayor



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Listening to Sonia Sotomayor’s opening statement at her confirmation hearing today, I was struck by two of her assertions. First, her claim that she believes in “fidelity to the law” and that “the task of a judge is not to make the law — it is to apply the law” is quite a change from her previous speeches and articles. It reminds me of the famous statement by the former editor of the Saturday Evening Post who once famously said that “when a politician changes his position, it’s sometimes hard to tell whether he has seen the light or felt the heat.” Given the consistency of Sotomayor’s contrary views on this particularly issue throughout her career, it seems more likely that she has felt the heat rather than seen the light. The fact that she felt the need to address this in her opening statement shows that she feels vulnerable on this issue.

Second, her claim that she has hewed “faithfully to precedents established by the Supreme Court” is certainly untrue in an area I know well from my time as an FEC commissioner — campaign-finance law. In 2004, the Second Circuit (Sotomayor included) refused to grant a rehearing or to overturn the decision of a three-judge panel that directly and unquestionably failed to follow the clear precedent established by the Supreme Court. In Landell v. Sorrell, the Second Circuit thus upheld a Vermont law that limited the expenditures of political candidates running for state office — despite the holding in 1976 by the Supreme Court in Buckley v. Valeo that such limitations are a violation of the First Amendment and “constitutionally invalid.” The dissenting judge on the panel in Landell pointed out that the Supreme Court in “Buckley rejected in the most explicit terms the notion that government may, under a Constitution containing a First Amendment, limit the amount of political speech by candidates and ordinary citizens [by limiting expenditures].”

In 2006, the Supreme Court reversed this obviously wrong decision by the Second Circuit. So there is no question that Sotomayor refused to follow Supreme Court precedent on campaign-finance law. This was no real surprise since she has an extreme view on this issue. She has compared contributions to bribes and seemingly sees no First Amendment problems in government regulation of protected political speech and political activity.



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