Bench Memos

“I Don’t Know What Liberal Means”

According to the account that Judge Sotomayor provided of a speech that she gave in January 2001, Sotomayor offered this explanation of her problems getting confirmed to the Second Circuit:

Senate Republican leaders believed that I was a potential for the Supreme Court one day.  They also believed that I am a liberal, and therefore did not want the nomination to go through.  I don’t know what liberal means.…

Hmmm.  Evidently Sotomayor knew what “liberal” meant when a New York Times article quoted her in 1983, when she was working as an assistant district attorney:

“I had more problems during my first year in the office with the low-grade crimes—the shoplifting, the prostitution, the minor assault cases,” [Sotomayor] says.  “In large measure, in those cases you were dealing with socioeconomic crimes, crimes that could be the product of the environment and of poverty.

“Once I started doing felonies, it became less hard.  No matter how liberal I am, I’m still outraged by crimes of violence.  Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous.”

In stating “No matter how liberal I am,” Sotomayor is describing herself as very liberal.  The clause is the semantic equivalent of “Even though I’m very liberal ….”  Among other things, Sotomayor understood back then that a liberal “sympathize[s] with the causes that [supposedly] lead these individuals to do these crimes” and is inclined to explain crimes as “the product of the environment and of poverty.”

But I think that I can offer Sotomayor even more help on what “liberal” means, at least in the context of judging. 

A liberal judge thinks that it’s proper to indulge her own identity in deciding cases. 

A liberal judge celebrates “the importance of indefiniteness in the law” and the “unpredictability” that results when a judge “develop[s] a novel approach” that “pushes the law in a new direction.”

A liberal judge resorts to shenanigans to bury the claims of white firefighters that they’ve been discriminated against on the basis of their race.

A liberal judge favors campaign-finance restrictions over the First Amendment.

A liberal judge embraces novel equal-protection theories that would compromise public safety.

A liberal judge publicly cheerleads liberal politicians.

A liberal judge excuses her own acts of discrimination.

A liberal judge thinks that Supreme Court justices are entitled to make policy.

A liberal judge hides her support for racial quotas behind gauzy euphemisms.

A liberal judge commends lawsuits that promote abortion and illegal immigration and that undermine welfare reform.

Hope these examples help.  Happy to flesh out more fully.

[Cross-posted on The Corner]

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