Bench Memos

David Brooks’s Wishful Thinking on Sotomayor?

[Re-posting because earlier version disappeared]

David Brooks acknowledges that someone who reads Judge Sotomayor’s speeches might “come away with the impression that she was a racial activist who is just using the judicial system as a vehicle for her social crusade.”  But although he concludes from her “whole record” that she is “quite liberal,” he sees “little evidence that she is motivated by racialist thinking or an activist attitude” and he labels her a “liberal incrementalist.”

Just a few observations:

1.  Sotomayor’s speeches offer the clearest window into her thinking about the role of a judge.  In those speeches, she is not constrained by Supreme Court precedent, circuit precedent, the risk of being overturned, or the facts and procedural posture of any case.  And she’s generally speaking before friendly audiences, with whom she would be more comfortable in being candid.  Her speeches display more than a racial activism.  As Jennifer Rubin discusses in her Weekly Standard cover article:

[Sotomayor] also denigrates the notion of a neutral, objective judiciary which treats all citizens alike and removes personal bias from the judicial branch. The goal here is not to remove racial or ethnic bias from judging, but to make sure the right bias is given voice—secured by increased numbers of minority judges. And her qualms about intellectual rigor and impartiality extend to virtually all that judges do (“I wonder whether achieving that goal is possible in all or even in most cases“). This is legal relativism, if not nihilism. No objective truth, no objective judging, only power politics.

2.  Brooks credits Tom Goldstein’s “much-cited study of the 96 race-related cases that have come before” Sotomayor.  But as I’ve noted, that study offers dubious insights, especially since Goldstein has for some odd reason omitted en banc proceedings entirely from his review.  Thus, his review doesn’t include Sotomayor’s dissent in Hayden v. Pataki, in which the en banc majority rejected a Voting Rights Act challenge to New York’s felon-disenfranchisement law.  Nor does it include the important case of Brown v. City of Oneonta, in which Judge Sotomayor joined an opinion dissenting from the denial of rehearing en banc that set forth what Chief Judge Walker called a “novel equal protection theor[y] that … would severely impact police protection.” 

3.  The phrase “liberal incrementalist” invites the question, “incrementalist towards what end?”  Brooks thinks that Sotomayor’s opinions “embody the sort of judicial minimalism that Obama and his aide Cass Sunstein admire most.”  But as I address more fully in my review of Sunstein’s Radicals in Robes, Sunstein’s “minimalism” is his “tactically prudent, gradualist path to a liberal ‘perfectionist’ rewriting of the Constitution”:

Sunstein’s minimalism … is better described as boil-the-frog gradualism. We American citizens are like the frog in the pot of water on the stove. If the Court turns up the heat—that is, imposes the Left’s agenda—too suddenly, we’ll jump out. But if it does so gradually, we’ll sit there in blissful ignorance until it’s too late.

I’ll bet that Brooks’s wishful thinking will prove to be naïve thinking.