The Campaign Spot

Sotomayor Wouldn’t Call Herself a ‘Legal Realist’, Even Though She Praised the Concept

Senate Republicans have found another example of the Sonia Sotomayor of 2009 sounding 180 degrees different from the Sonia Sotomayor of a previous vintage.

Yesterday, while discussing the philosophy/approach of ‘legal realism’, Sotomayor said, “That’s not quite words that I would use because there are many academics and judges who have talked about being legal realists, but I don’t apply that label to myself at all . . .”
Sen. Lindsey Graham (R., S.C.) asked, “So you would not be a disciple of the legal realism school?” She responded, “no.”
But in a 1996 law review article, while she didn’t say she was a “disciple,” she certainly sounded like a fan or enthusiast of the approach:

[Judge] Frank, a noted judge of the Court of Appeals for the Second Circuit and a founder of the school of “Legal Realism,” postulated that the public’s distrust of lawyers arise because the law is “uncertain, indefinite, [and] subject to incalculable changes,” while the public instead needs and wants certainty and clarity from the law. . . . Frank believed that in the complex, fast-paced modern era, lawyers do themselves a disservice by acceding to the public myth that law can be certain and stable. He advocated that lawyers themselves accept the premise that the law is not fixed and that change in the law is inevitable and to be welcomed. . . . Frank’s thesis, set forth in 1930, should continue to attract examination today. It supports a pride that lawyers can take in what they do and how they do it. The law can change its direction entirely, as when Brown v. Board of Education overturned Plessy v. Ferguson, or as the common law has gradually done by altering the standards of products liability law directly contrary to the originally restricted view that instructed “caveat emptor.” As these cases show, change — sometimes radical change — can and does occur in a legal system that serves a society whose social policy itself changes.

Easy to see why President Obama picked her, huh?

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