Bench Memos

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Sotomayor Day 1


At the end of Day 1:   Senator Sessions was fantastic. He was personally gracious and statesmanlike, yet he made the strong statement that “our legal system is at a dangerous crossroads”: We will either follow the path of the American tradition, where judges apply the law impartially and according to their oath, allowing the people to make their own laws in a representative democracy, or the path of President Obama and Judge Sotomayor, where judges, in the words of Sotomayor herself, can decide what facts they “choose to see” in a case, “and where they can pursue their own opinions and agenda.”   “Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not the law,” he said, calling such a view of the role of the Court ”disqualifying.”   It was interesting to see the Senate Democrats invoking God so strongly. Senator Schumer described America as “God’s noble experiment” — not once but twice, with the emphasis on “God.” Senator Leahy also chose to emphasize God, when he swore in Sotomayor, saying “So . . . help . . . you . . . GOD.”  Is that allowed in the Senate under their view of the Constitution?   Or are they just putting on a great show, along with the White House, to try to make Sotomayor sound like a Republican proponent of originalism and judicial restraint? Has Al Franken been there long enough to give them all a crash course in acting?   For her part, Judge Sotomayor followed her short, White House mandated script, and even forcefully did her best John Roberts imitation, saying that her “judicial philosophy” is “simple:”  “fidelity . . . to . . .  the . . . law.”  Great, Judge . . . now we just need to hear how we reconcile that with ”choosing to see” the facts you like in a case before you, and how it squares with the law you’re supposed to be faithful to being so indefinite that a judge herself has to invent its meaning?


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