Last month, I pointed out an interesting aspect of Judge (and soon to be Justice) Sotomayor’s defense to her statement that she “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.” She defended this statement by insisting that her words should not be interpreted literally, but should instead be understood to communicate what she intended communicate (which, of course, is not what the words actually communicated). She said:

If you listen to my words, it would have the same suggestion: that only Latinos would come to wiser decisions, but that wouldn’t make sense in the context of my speech either, because I pointed out in the speech that eight—nine—white men had decided Brown v. Board of Education. And, I noted in a separate paragraph of the speech that no one person speaks in the voice of any group. So, my rhetorical flourish, just like hers [Justice O’Conner’s], can’t be read literally. It had a different meaning in the context of the entire speech.

Judge Sotomayor offered this explanation with such regularity and apparent sincerity that one would actually be led to believe that words can only mean what their author intended them to mean. A novel concept, indeed!

It seems that Originalism has found a defense from another unlikely advocate: the Obama administration. (more…)

What’s the big deal? Apparently, Dana Milbank of the Washington Post seems to think that the handful of Republican Senators that choose to vote by proxy in Committee against Sotomayor somehow are disgracing the nomination process because they didn’t show up. Or was it that they didn’t vote yes like their colleague, Lindsey Graham? As if sitting through hours upon hours of near pointless hearings isn’t enough. Truthfully, our reporters have nothing better to do.

During Judge Sotomayor’s confirmation hearings, I have been interested in various Republican Senators’ criticism of the view that the individual right to bear arms in the Second Amendment may not apply against the States.  What has specifically interested me is that the doctrine of incorporation, as we have it today, means that certain provisions of the Bill of Rights apply against the States through the 14th Amendment’s due process clause. I have not come to a firm conclusion as to whether, as matter of original meaning, the 14th Amendment really applied any provisions in the Bill of Rights against the States.  But I am certain that if it did, it was not through the amendment’s due process clause. To hold otherwise necessarily requires one to concede that substantive due process is a legitimate legal doctrine.  Unlike many Senate Republicans on the Senate Judiciary Committee, I do not believe that substantive due process becomes legitimate merely because its application would compel a result that I may like.

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One thing is becoming clear in the early rounds of questioning at Judge Sotomayor’s confirmation hearing:  Judge Sotomayor appears to insist that her past words be interpreted according to her original intent.  I wonder if she would insist that the words written in the Constitution be interpreted accordingly?

Newsweek has an interesting Q&A with Robert Bork regarding Judge Sotomayor’s nomination to the Supreme Court.

Here are some of the questions and answers I found interesting:

Newsweek: Is there a principled definition of what judicial activism is?

Bork: Sure. A judge is an activist when he announces principles or reaches results that cannot plausibly be related to the actual Constitution.

…

Newsweek: Your own confirmation hearing in 1987 is often called a watershed for the process.

Bork: It wouldn’t have been but for the fact that I looked like the fifth vote to overrule Roe v. Wade. And in modern politics, that is a subject that raises hysteria.

Newsweek: Would you have been the fifth vote to overturn Roe v. Wade?

Bork: Oh, of course. It’s one of the most corrupt decisions I’ve ever seen.

Newsweek: Was it your view that the law on abortion should be left totally to the democratic process?

Bork: I oppose abortion. But an amazing number of people thought that I would outlaw abortion. They didn’t understand that not only did I have no desire to do that, but I had no power to do it. If you overrule Roe v. Wade, abortion does not become illegal. State legislatures take on the subject. The abortion issue has produced divisions and bitterness in our politics that countries don’t have where abortion is decided by legislatures. And both sides go home, after a compromise, and attempt to try again next year. And as a result, it’s not nearly the explosive issue as it is here where the court has grabbed it and taken it away from the voters.

It is really a shame this man is not on the Supreme Court.

For all the talk about Sotomayor’s “wise Latina” speech, Heather Mac Donald raises a point that few have mentioned: the speech is very poorly written. Back in 2005, I agreed with the concern that Harriet Miers’ writing was simply inept, and Sotomayor’s writing isn’t that great either. To be sure, she’s replacing someone who tended to annoy other Justices with all of his excess verbiage, so perhaps it’s a wash in that regard.

What about the “wise Latina” line, though? Here’s the full paragraph:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

On one reading, Sotomayor is simply making the commonplace point that the diverse experiences of judges will inevitably affect how they view certain types of cases. Although the “more often than not” is eye-opening, the surrounding paragraphs seem to limit the discussion to “race and sex discrimination,” and it makes sense that someone from a minority background would see her own perspective as being relevant and helpful in such cases.

That said, it would be more consistent if she had said that a “wise Latina woman” might reach a “different” — not “better” — conclusion in such cases. After all, Sotomayor herself said that she agreed with a law professor’s view that “there is no objective stance but only a series of perspectives — no neutrality.” On that view, a “wise Latina woman” can’t make an objectively better decision in the first place.

In any event, I was rather more intrigued by a couple of other comments. First, earlier in the speech, she says, “Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.”

In the 1994 speech from which this is all copied, Sotomayor mentioned only gender — and specifically cited Carol Gilligan, famous for difference theory. She followed up later with a sentence that was deleted from the later rendition of the speech, explaining that a “better” decision would be “a more compassionate, and caring conclusion.” [The superfluous comma is hers.] So in that version of the speech, she is leading up to the common, although not uncontroversial, claim that women are more “compassionate and caring” than men. But here she seems to be suggesting that not just women, but also “minority judges” might have basic differences in logic and reasoning. Hmmm.

Second, note that the “wise Latina” paragraph begins with these words: “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”
Now this may be just yet another example of sloppy writing (again, the 1994 speech mentioned only gender here), but she’s suggesting that “national origins” could involve “inherent physiological . . . differences” that are relevant to judging, and that she gives more weight to this possibility than does her colleague.

Now as to gender, the inherent physiological ability to become pregnant could influence a judge’s perspective in, say, cases under the Pregnancy Discrimination Act. But national origin? I’d be curious to know what such “inherent physiological” traits she has in mind there.

Some pro-lifers have held out the hope based on a few of her opinions that perhaps Sonia Sotomayor could be a stealth anti-Roe vote on the Court.  This Washington Times editorial puts some cold water on that idea. (more…)

Uploaded on the Senate Judiciary Website is this introduction (PDF) delivered by Sotomayor to a talk given by Scalia at Hofstra Law School, two days before 9-11. Her thoughts generally are on Legal Ethics, and in her particulars she quotes not only Learned Hand and Oliver Holmes, but a certain Robert Bork from his book the Tempting of America. Her views of legal ethics both encompass a minimal professional standard and the idea that sometimes our ethical responsibilities compel us to do things contrary to our personal moral responsibilities (the example she gives here is defending an indigent client whose actions we are defending are morally repugnant…somewhat flawed her example is in my opinion, but I digress). The true meat in this speech is her respectful and subtly coy articulation of Justice Scalia’s philosophy: (more…)

(Posted on What’s Wrong With the World)

“The ink is black, the page is white
Together we learn to read and write
A child is black, a child is white
The whole world looks upon the sight
A beautiful sight.

And now a child can understand
That this is the law of all the land
All the land.

The world is black, the world is white
It turns by day, and then by night
A child is black, a child is white
Together they grow to see the light
To see the light.

And now at last, they plainly see
They’ll have a dance of liberty, liberty.”

–David Arkin and Earl Robinson (recorded by Three Dog Night)

Consider two cases about two tests. The first, Bartlett v. the New York State Board of Law Examiners, is from 1997. The other, Ricci v. DeStefano, is presently on appeal before the U. S. Supreme Court, which will issue its opinion sometime soon. In the first case, the jurist who issued the ruling was Judge Sonia Sotomayor when she served on the bench of the Federal District Court of the Southern District of New York. In the latter case, the Supreme Court will be assessing a Second Circuit Court of Appeals ruling in which Judge Sonia Sotomayor participated.

What follows is a summary of the first case, found in the article authored by Ruth Shalit, “Defining Disability Down,” published in the August 25, 1997 issue of The New Republic:
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Let’s hope there is indeed cause for their concerns.

Not long ago the Supreme Court was content to let the legislative and executive branches handle national security issues. In light of the Supreme Court’s increasing intrusion into national security policy it is prudent to question candidates regarding their national security expertise. Glen Sulmasy, a member of the U.S. Coast Guard Academy law faculty, lists five questions to ask Sotomayor. They are as follows: (more…)