Bench Memos

Deconstructionism Takes a Hit

While lacking in major fireworks, the first round of questioning in Sonia Sotomayor’s confirmation hearing was illuminating. What did we learn, apart from the fact that Lindsey Graham must have made a mighty fine trial lawyer, and that the GOP nominated the wrong senator from Arizona in the last presidential election?

Well, as others have chronicled, we didn’t learn much about Sonia Sotomayor. In some respects, her comments were so out of sync with her past writings as to create a laughable discordance. But in two major areas, Sotomayor’s answers — however disingenuous — represent a major victory for conservatism.

First, Sotomayor embraced legal formalism and rejected legal realism, critical race theory, and the host of other academic deconstructionist fashions of the past eighty-odd years. (For my thoughts on how those movements themselves act as the driver behind the judicial confirmation mess, see my column in today’s Examiner.) It’s hardly surprising that Mike Seidman reacted as strongly as he did to Sotomayor’s testimony: we have a Democratic Supreme Court nominee openly rejecting as illegitimate the major academic movement to which Seidman has devoted his life. Sotomayor explicitly repudiated the “empathy” standard of judging articulated by the president who nominated her, and completely retreated from her own past race- and gender-conscious statements about the law.

Second, Sotomayor flatly rejected legal internationalism as illegitimate, except in the obvious areas of treaty interpretation and contractual conflict-of-laws situations. Again, her earlier public statements may be contradictory, but her testimony on its face is an emphatic rejection of the legal academy’s school of transnational legal process.

The importance of these concessions should not be underestimated. Sotomayor will be confirmed, but Obama will likely have one or two more vacancies to fill. It’s hard for me to see why Sotomayor’s statements couldn’t be used pretty powerfully to undercut the legitimacy of a full-blown transnationalist like Harold Koh, or anyone firmly rooted in the Critical Legal Studies school.

Of course, I realize that hypocrisy abounds, and not merely in the disconnect between Sotomayor’s current testimony and her past statements and writings. For instance, as others have noted, the Democratic senators were ranting about Ledbetter without raising an eyebrow over Sotomayor’s statute-of-limitations explanation of Didden. But statute-of-limitations questions are rather technical and difficult to convey to a lay audience. On a more general level, I think that Sotomayor’s public embrace of legal formalism and rejection of transnationalism is quite significant indeed.

– James R. Copland is the director of the Manhattan Institute Center for Legal Policy.

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