Legal Commentary

Following the Law

By TChris

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?

Full post as published by TalkLeft on June 03, 2009 (boomark / email).