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  • Sotomayor: Court Jester or Judge as King?

    Walter Olson recently expressed some discontent over the hullabaloo raised by his conservative allies concerning the now infamous Sotomayor “where policy is made” YouTube video. He states:

    Some conservatives keep publicizing a YouTube clip where she confides to a panel-discussion audience that appeals courts are “where policy is made.” Sorry, but that’s a standard observation among legal commentators these days—by no means limited to liberals—and, by my subjective measure, she actually comes off pretty well on that tape.

    While it is certainly true that conservatives have often observed (and lamented) the fact that policy is made in the circuit courts, Sotomayor’s comments, in contrast, were clearly not a mere statement of fact. Let’s look closer at her exact language:

    All of the legal defense funds out there, they’re looking for people with Court of Appeals experience. Because it is — Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don’t ‘make law,’ I know. [Laughter from audience] Okay, I know. I know. I’m not promoting it, and I’m not advocating it. I’m, you know. [More laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.

    Were she simply stating a fact, she wouldn’t have expressed the mild regret revealed in the statement: “…this is on tape, and I should never say that.” When conservatives make the observation that policy is made by the circuit courts, we don’t exactly feel the need to whisper it. If her statement was simply an observation and nothing more, then what’s the problem with saying it in front of a camera?

    After the audience laughs at her lightly mocking the idea that “we don’t ‘make law,’” she goes on to make the disclaimer, in quite a flippant tone, that she’s not “promoting” or “advocating” legislating from the appeals courts. The laughter and her response are telling, and anyone familiar with Legal Realism gets the joke that she and her audience were sharing. Legal Realism, a theory which Sotomayor has embraced in her academic writing, casts the idea of judges applying law to cases as mere subterfuge for what really occurs: the judiciary essentially functioning as another political branch, judicially amending the Constitution and other laws to meet the needs of an evolving society. In a co-authored law review article, Returning Majesty To The Law and Politics: A Modern Approach, Sotomayor stated:

    Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

    No one denies that society goes through certain changes that may necessitate alterations in law, but the Founders gave us a legislative branch to address such needs.

    If in fact her statements in the video don’t reveal an outright “advocacy” of legislating from the bench, they do reveal the mockery that she makes of the idea that judicial hubris poses a grave threat to the rule of law. Not exactly comforting coming from someone who may soon sit on the highest court in the nation.

    Posted in Legal [slideshow_deploy]

    5 Responses to Sotomayor: Court Jester or Judge as King?

    1. Jim in Minneapolis says:

      I am no expert on Judge Sotomayor's philosophy of interpretation and jurisprudence, but, at least within the quoted excerpts you provide, Sotomayor says nothing that a natural law originalist could not say and mean. Certainly legal concepts can be more precise than the language we use to communicate them, so that two people can use the same words to communicate different sentiments which have subtle but important distinctions, but nothing in the post attempts to show that this is the case in with Sotomayor's words.

      And certainly the words themselves are not ones deserving of condemnation, for any conservative with a proper understanding of the processes and history of law could agree with them on their face.

    2. jr., Michigan says:

      i pick court jester. or, how about court psychopath?

    3. Barb -mn says:

      If possible, please research specific American laws that have to or have been altered. Unless these alterations of laws have equal benefit to all and not made with bias of race, creed or culture, it is a violation to the constitution.

    4. Mike, Elko, NV says:

      The Founding Fathers foresaw such a situation, debated it, and concluded judges should not have the power. Their debate was whether, or not, the judiciary ought to be part of the executive as a check against legislative encroachment.

      From Madison's notes on July 21st in the Constitutional Convention, Mr. Wilson argues "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing them … Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of law, and of counteracting, …" Clearly this is an argument for an expansive judicial review of the sort Sotomayor seems to advocate.

      Mr. Gorham in response, according to Madison's notes replied "As Judgeses they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures."

      In a 20 March 1788 paper, Brutus argued that the Supreme Court would be "exalted above all other powers in the government, and subject to no control." This is because judges could construct the constitution according to their whims and there was nothing to be done about it. His solution, interestingly, was to leave construction to the legislature who had to answer to voters.

      In hindsight Brutus was very wise.

    5. Pingback: Confirmation Hearings: Ten Questions for Sonia Sotomayor | The National Scene

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