Bench Memos

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The Real Sotomayor Issue


The Sotomayor Supreme Court nomination got a quick start out of the gate, focusing debate about something very important:  How are judges supposed to decide cases?  Are they, as Judge Sotomayor says, supposed to rule based upon identity politics, using their own personal views and biases in making decisions?  Or is it to put aside all personal experiences and policy desires and apply the Constitution and laws as written?

Somehow, this important debate is turning into an argument about race and identity politics.

Many of us in the conservative movement believe that Judge Sotomayor is intelligent, and that, at least on paper, she has professional qualifications that are certainly sufficient for occupying a seat on the U.S. Supreme Court.

But what needs deeper examination, because it is very troubling, is her overarching judicial philosophy – one that, judging from her public remarks and law review articles, she has thought about seriously and embraced only after much reflection.  It’s the judicial philosophy shared by President Obama – a philosophy with which most Americans, who support judicial restraint, vehemently disagree.

It is only this – President Obama’s and Judge Sotomayor’s judicial philosophy – that drives us to raise serious concerns about Judge Sotomayor’s fitness to serve on the nation’s highest court.

At its core, the thrust of most conservatives’ concerns from the past several days centered around three items—all of which, by the way, the White House press operation has tried mightily to brush aside: First, a video clip of Judge Sotomayor from a 2005 appearance at Duke Law School, where she stated that appellate courts make policy.

Second, a 2002 law review article in which Judge Sotomayor says that race, gender, and ethnicity necessarily affect the way judges decide cases – and that’s a good thing.

Third, a 1996 law review article challenging the belief that law needs to be knowable and predictable, in which she borrowed from the philosophy of early 20th century Legal Realists who rejected the idea that judging involves the impartial application of neutral principles. This body of work is not the product of stupidity, or reverse racism, or a bad temper. Rather, it appears to be a view of the courts as engines of social and political change—in short, wrought out of a devotion to judicial activism.

We need to move forward with a confirmation process that focuses on what really matters:  Does Judge Sotomayor embrace a view of judging that is constrained by the text, history, and principles of the Constitution and our laws?  Or does she favor an interpretive enterprise in which a judge’s personal feelings, views, background, and politics drive the outcome of cases?


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