Bench Memos

Sotomayor and Judicial Restraint

I noted last week that Judge Sotomayor’s Berkeley speech—which we now know was no aberration—is problematic not only in its identity politics, but because it calls into question her commitment to that sine qua non of judicial restraint, namely that the judge take constitutional and statutory language seriously.  And, on reading the speech yet again, I think the problem is even deeper than that.  Textualism aside, can a judge practice judicial restraint if she asserts that she cannot be “objective,” that “impartiality” is at best an “aspiration,” that morality is “relative,” and that “there can never be a universal definition of wise”?   Is this celebration of subjectivity even consistent with the rule of law?  When you add these concerns to her apparent obsession with ethnicity and gender, you really have to wonder what we’re getting.  And, again, it is increasingly clear from her record that none of this is aberrational, but rather a consistent and strong theme over a long period of time.