Bench Memos

Sotomayor: Rhetoric v. Record

Okay, after three hours of questioning, it is absolutely clear that this hearing is all about one thing:  Rhetoric vs. Record. 


Judge Sotomayor — obviously at the direction of the White House — has decided to follow the path of not just stonewalling, but of flatly contradicting what is in her record. That record is long — as her boosters note, she has more judicial experience than any Supreme Court nominee in a very long time, and she has speeches and law review articles spanning three decades.  


What she is doing this morning is making statements that are utterly irreconcilable with that record.


Just an example: She tried to explain away her Duke Law school statements that “appellate courts make policy” by saying: Oh, no, Senator; courts don’t make the same kind of policy that you make in the legislature. What I meant was, district courts find facts, and appellate courts then apply the law.


But in Ricci, she didn’t apply any law at all. She did not grapple with the applicable precedents, either of the Supreme Court or of the Second Circuit. She engaged in zero legal analysis.  


She has tried to erase her long history of statements that a judge’s personal background and views can be brought to bear on a case and indeed used to make “law” and affect “the facts that I choose to see” by now claiming that all she meant was her background and views just help her to see all sides of a case impartially. If that is what she really meant all these years, she could have said it. It is not what she said.


Her answers to Senator Hatch about her decision that the 2nd Amendment right to bear arms is not a “fundamental right” completely ignored the distinction he was asking her about, by which she ignored a century of incorporation doctrine under the Due Process Clause and chose to rely on an irrelevant Privileges and Immunities analysis.


When senators assess her rhetoric today, as against her record of the last three decades, her record must trump her rhetoric.