Bench Memos

Sotomayor and Text

A judicial nominee must have a satisfactory temperament, be objectively qualified, and have no ethical disqualifications. But there is more: The nominee must be not only able but willing to perform the job for which she has been nominated, which is being a judge. 

Judges who are not willing to follow the text of duly enacted laws, from the Constitution on down, fail to meet this qualification. If a president were unwilling to follow the law, Senators would rightly impeach him; if a judge is unwilling to follow the law, senators must vote against her confirmation.  Otherwise, senators are themselves failing to do their jobs.

So, is Judge Sotomayor willing to follow the text of duly enacted laws?

By extolling personal experiences as a qualification for being a wise judge, Judge Sotomayor strongly suggests that she is not a textualist. This concern would be raised no matter what sort of personal experiences she was talking about. If someone gave a speech saying that being a good tap dancer therefore made him a good accountant, we would wonder whether that person really understood what it is that accountants are supposed to do. 

Now, it is possible that Judge Sotomayor thinks that her lived experiences will help her to interpret legal texts better, and that may even be true on a very few occasions. But it is at least as plausible that she meant that her experiences give her perspectives and wisdom that will and ought to be reflected in her judging, irrespective of their relevance to what a legal text says. So that is troubling. 

The specific context in which she spoke of her personal background involved ethnicity and sex, and so we might fear this area to be a particular one in which she would put her personal preferences ahead of what the law says. Exhibit A that this fear is legitimate is, of course, the New Haven firefighters case.

And if she does not take legal texts as seriously as she should, and if she is willing to give weight to her personal preferences and policy insights, then she may well do so in other areas of the law as well. Having concluded that legal texts are not especially critical, but must be tempered by one’s general wisdom, there is no reason to suppose that this conclusion should not apply to her jurisprudence elsewhere. And there is evidence of that, too.

Anyway, my point is that the significance of Judge Sotomayor’s ruminations on being on “wise Latina” and the like are relevant for what they say about her attitude toward the judicial role and, specifically, the role of legal texts — not simply for what they suggest about her likely judging on matters that implicate identity politics.

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