Bench Memos

Sotomayor Hearing — Leahy’s Round 1

Leahy:  What qualities should a judge possess?

SS:  [Rambling wind-up]  Open mind.  Understanding parties’ arguments.  Decision limited to what law says.

PL:  Did your role as prosecutor of Tarzan murder shape you?

SS:  I became lawyer in prosecutor’s office.  Shaped my life.  Law schools teach theory.  Prosecutors learn that law is focused on facts.  That’s what I took with me as judge.  

Learned from Tarzan murderer the tragic consequences of needless death.  Tarzan killer destroyed families.  Takes credit for trying killings in single trial.  [More rambling]

As judge, I don’t make law.  Job isn’t to decide whether or not to accept new theories.

PL:  I was a prosecutor, too.  You’ve told me that the law is what controls, and I was struck by that.  [Gee, wow.] 

PL:  Legal theory in Ricci wasn’t new.  Binding precedent existed.  Case then went to Supreme Court, and you were reversed by 5-4.  Court reversed precedent.  But now people attack you as activist.  How do you react to Court’s decision?  [Ridiculously distorted]

SS:  Panel decided case on basis of district court decision and established precedent.  Not a quota case, not an affirmative-action case.  Involved a test that had disparate impact.  City might have to defend test against suit.  City decided that it wouldn’t certify test, would instead try to develop alternative test w/o disparate impact. 

Issue before panel was whether city’s decision was based on race or on its understanding of what law required it to do.  Panel concluded that city’s decision was lawful under circuit precedent.

Supreme Court applied new standard from different area of law.

PL:  But you had precedent from Supreme Court and your circuit?

SS:  Absolutely.

PL:  New Court decision would require different result?

SS:  Absolutely.

[Surprisingly ineffective line of questioning]

PL:  Outrageous charges of racism against you, but you haven’t been able to respond.  [Why not??]  Misquotes “wise Latina” passage.  You also said that you love America and that judges must transcend prejudices.  You also told me that the law is what controls. 

SS:  I gave a variant of my speech to different groups, usually women or young Latino lawyers and students.  I was trying to inspire them to believe that their life experiences would enrich the legal system, that they could become anything they want to become.

My words have created a misunderstanding.  I do not believe that any ethnic, racial or gender group has an advantage in sound judging.  Every person has equal opportunity to be good or wise judge, regardless of life experiences.  I was trying to agree with what Justice O’Connor must have meant.

PL:  Have you tried to be fair during your judicial career?

SS:  I first decide what the law requires and explain why.

PL:  Doesn’t your oath of office require that?

SS:  Yes.

PL:   Turns to Heller gun rights decision.  Do you accept that Court ruled that 2A right is an individual right?

SS:  Yes.

PL:  Maloney on 2A incorporation.  Heller left unresolved whether Second Amendment applies against states.  Would you have open mind on issue?

SS:  I understand how important the right to bear arms is to some Americans.  I have friends who hunt and I have a godchild who belongs to the NRA.  Discusses incorporation.  In Maloney, we followed old Court precedent.  I absolutely have an open mind. 

PL:  Asks about U.S. v. Giordano (sp?).  Unanimous panel upheld conviction against constitutional challenge that federal statute exceeded Congress’s power under Commerce Clause.  Any difficulty reaching that conclusion?

SS:  No.