Following the Law

As Republicans struggle to invent a reason -- any reason -- to oppose the confirmation of Judge Sotomayor, they've seized a snippet of a speech she once gave to claim the judge "will let her personal background and experiences influence her opinions from the bench." This attack makes sense only if you believe that all the Republican-appointed judges since the Reagan administration were selected without considering whether their backgrounds and experiences tended to make their judicial philosophies pro-business and pro-Republican. Do you?

Instead of confronting the Republican hypocrisy (and how often do Democrats in the Senate bother with that?), Senator Leahy is playing the game by asserting that Judge Sotomayor will "follow the law" without regard to her upbringing (or, presumably, her gender or national origin). Of course, if "the law" is clear and easily followed, the Supreme Court isn't likely to weigh in on the law's meaning. It is when a statute is ambiguous or precedent provides no clear answer that Supreme Court Justices are called upon to clarify the law. All nine Justices believe they are "following the law" when they vote in 5-4 decisions, but the dissenters follow it to a different conclusion than the Justices who comprise the majority. [more ...]

The snippet of the 2001 speech that so upsets Republicans is:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

Judge Sotomayor's attempt to articulate the perfectly reasonable notion that different life experiences lead to different perspectives and that those perspectives can enhance judicial decisionmaking could have been phrased in a way that didn't seem to pit the "wise Latina" perspective against the "white male" point of view, but the underlying point is nonetheless valid. Judges necessarily fall back upon a judicial philosophy as they attempt to discern (if not "follow") the law in difficult cases, and life experiences inevitably play a role in shaping that philosophy.

Maybe Sen. Leahy believes the public is incapable of accepting that simple truth. Maybe he's right: the simplistic notion that good judges "follow the law" sounds reassuring even though it's essentially meaningless when the law is unclear or undefined. Still, can't we have just a little honesty in the Senate instead of all the posturing we're seeing?

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    Given that (none / 0) (#1)
    by JamesTX on Wed Jun 03, 2009 at 12:46:07 PM EST
    the Republican ideologues appointed by three decades of conservatives have radically altered case law to favor a severely conservative interpetation, it seems to me this argument is a little like the kettle and pot. Of course, appointees don't always turn out as expected, especially Supremes. My only worry is that Sotomayor will not!

    There is no law to follow. All judges legislate from the bench. Idealism is great, but in the end it isn't possible to transmit contextual meaning in statutes. Judges decide what the law is. I think legal scholars have a name for people who believe that, don't they? I would like to know what I am!

    Senator Leahy is (none / 0) (#2)
    by KeysDan on Wed Jun 03, 2009 at 01:09:33 PM EST
    just running interference---he knows that "the law", essentially, is what the court says it is.  A judge "follows the law" as applicable,  a justice, is a horse of different color.

    For the first time (none / 0) (#3)
    by ruffian on Wed Jun 03, 2009 at 02:20:14 PM EST
    I am really worried about Sotomayor's confirmation. The big Dems seem woefully unprepared to answer back with the perfect response you articulated, or to even point to the end of her speech where she makes the same point, as I believe Somerby pointed out.

    I see this fake controversy growing instead of quieting and it it beginning to make me nervous.

    You may have something with the (none / 0) (#4)
    by Inspector Gadget on Wed Jun 03, 2009 at 03:06:30 PM EST
    "fake controversy", though. As long as noise is still going on around Sotomayor, there's other bigger topics being kept quiet....just maybe.

    Uh-oh (none / 0) (#5)
    by ruffian on Wed Jun 03, 2009 at 04:01:19 PM EST
    Now I'm even more worried!

    Maybe it is just that my tolerance for 'the stoopid' in the public discourse is shrinking, and I'm mistaking that irritability with real worry...

    Or maybe the nomination is just doomed...


    Transparent Hypocrisy (none / 0) (#6)
    by ricosuave on Wed Jun 03, 2009 at 05:33:29 PM EST
    How many of the faux-offended are the same folks who claimed Al Gore was not suitable for the presidency because he lived in a hotel when he was younger?  Or praised and supported Miguel Estrada for his background?

    What utter BS.  If this one quote is all they have, then I don't see how she fails to be confirmed.  (Except, of course, for the Dems' standard ability to snatch defeat from the jaws of victory.)

    I would have thought that (none / 0) (#7)
    by blogtopus on Wed Jun 03, 2009 at 07:53:25 PM EST
    a reasonable response for Sotomayer would be "I appreciate all the concern, but I intend to follow the law, much as Justices Scalia, Thomas, Roberts, Alito and Kennedy follow it."