Bench Memos

Sotomayor Hearing — Sessions’s Round 1

Sessions:  You’ve said experience should impact decisions.  Goes against oath. Not just one sentence.  Body of thought.  Leahy misquoted your “wise Latina” comment:  “more often than not”.  You’ve said court of appeals is where policy is made.  [One other quote]  What do you really believe, that there is no real “Law”?

SS:  My record demonstrates that judges must apply law, not make it.  In every case, I have done what the law requires.

My “policy” remark, in context, made very clear that I wasn’t talking about Congress’s policymaking.  I was contrasting district court role (find facts and apply law; doesn’t bind anyone else) with appellate role (establishes precedent, with policy ramifications).  Full context is very clear. 

JS:  I don’t think it’s that clear.  You’ve said that we can’t deny differences resulting from experiences but must decide when appropriate.

SS:  Prejudices are never appropriate.  I was talking about obligation of judges to examine their feelings to make sure that’s not affecting the outcome.  Must recognize feelings in order to put them aside.  But there are situations in which experiences are important because law asks us to use those experiences.

JS:  You seem to accept that there may be sympathies and prejudices that are permissible.

SS:  Judges need to test their biases, not just assume impartiality.

JS:  What you’re saying today is inconsistent with what you’ve said before.  You’ve also questioned possibility and desirability of impartiality.

SS:  Life experiences do influence us in good ways that can affect what we see, but that’s not what drives a result.  The law commands the result.  Most of my speech was an academic discussion.  I wasn’t encouraging belief that experiences should drive result.

JS:  Disputes commitment to impartiality.

SS:  My personal views have never affected outcome of case.  I do not permit my sympathies or prejudices to influence rulings.

JS:  You’ve said that you accept the proposition that your experiences affect the facts that you “choose” to see.

SS:  It’s not a question of choosing.  I didn’t intend to suggest that.  Our life experiences permit us to see some facts more easily than others.  That’s why we have appellate panels. 

JS:  Do you stand by your statement that your experiences affect the facts that you “choose” to see?

SS:  I don’t stand by your understanding of that.

JS:  You disagreed with Judge Cedarbaum’s aspiration to impartiality, said not possible in all or even most cases.  You disputed Justice O’Connor’s view.  You doubted the ability to be objective.  So how reconcile your various speeches with your oath of office?

SS:  Judge Cedarbaum is here.  We take same approach of applying laws to facts.  I used “rhetorical flourish that fell flat.”  O’Connor couldn’t have meant what she seemed to say, so I was trying to play on her words.  It fell flat, it was bad.  Impression I left is not what I do as a judge.  I was trying to inspire.

JS:  But you made statements like this over a decade or more.  Impact of judicial philosophy would be even greater on Supreme Court.  Let’s look at New Haven firefighters case.  City developed fair test, but threw out results because not enough of one racial group did well.  Supreme Court said raw racial results drove city’s action.  Was fact that New Haven firefighters were discriminated against a fact that you chose not to see?

SS:  [Confuses Seventh Circuit gun case with Sixth Circuit case on promotional test.]  Supreme Court exercised prerogative to establish new standard. 

JS:  Opinion was very short and unpublished.  On rehearing, your vote to deny rehearing was decisive vote.  Leahy misrepresented posture of case.

JS:  I asked you in 1997 whether you’d follow Adarand ruling in applying strict scrutiny to racial discrimination.  You said that Adarand applied to all governmental classifications, and you committed to follow it. 

SS:  Adarand wasn’t at issue in Ricci.  Issue wasn’t intentional discrimination.  Supreme Court didn’t apply strict scrutiny.  [Confused.  That’s because Court didn’t reach the constitutional question.]

[I missed a minute or two here.]

JS:  Do you think that the firefighters felt that their claims were adequately addressed?

SS:  We were very sympathetic to them and said as much.  They had thorough opinion from district court.  Supreme Court answered the important question because it had the ability to do so.  Panel was relying on circuit precedent.