Sen. Pat Leahy’s endorsement of Sonia Sotomayor gives vivid testimony to all that is wrong with senatorial politics on judicial nominees to the Supreme Court. I shall put aside his hyperbolic assertion that Judge Sotomayor has a “long and distinguished career on the federal bench,” to make a brief comment about his conception of the judicial role. Leahy makes reference to the Supreme Court’s decision in the Lily Ledbetter case, on when the statute of limitations should start to run in a sex discrimination case. To him, the issue is one of self-evident truth. All we have to do is look at the decision to “to understand how just one vote can determine the Court’s decision and impact the lives and freedoms of countless Americans.” Thereafter, he makes an appeal to the “real-world” impact of that decision.
The argument is utterly hollow. What is missing is any assessment of the merits of that decision, in the real world or anywhere else. The Leahy test for sex discrimination cases is really quite simple: The only just result is one that allows a plaintiff to win her suit. He offers no explanation of how the decision will affect job creation and promotion over the long term. He sees no risk that the suits will be brought by individuals who are looking for a windfall after they have retired, when the defendant corporation does not still employ the people who made these personnel decisions years ago. He writes that Judge Sotomayor knows that the “courthouse doors must be as open to ordinary Americans as they are to government and big corporations.” He never once mentions that the Ledbetter legislation opens them far wider.
I have written about this unfortunate legislation elsewhere, and don’t want to develop my arguments against it. But it is important to know that the dogmatic frame of mind that Senator Leahy brings to this nomination does not speak well for the future of law in the United States. Pick your friends and you know your outcome.