Posted by Ilya Somin: The Sotomayor Pick: http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243346531
I am not yet sure what position to take on President Obama's selection of Sonia Sotomayor. My general sense is that she is very liberal, and thus likely to take what I consider to be mistaken positions on many major constitutional law issues. I am also not favorably impressed with her notorious statement that [1]"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." Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part based on their ethnic or racial origins. Of course it is inevitable that personal background will influence judicial decisionmaking to some degree. Sotomayor is right to imply out that it often had a negative effect on the decisions of white male judges in the past. But there is a difference between recognizing an inevitable source of bias while striving to constrain it and actually embracing it. I much prefer a jurist who strives to get beyond his or her ethnicity in making decisions than one who [2]rejects the view that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law" and instead believes that we should embrace the fact that "our gender and national origins may and will make a difference in our judging." On the plus side, Sotomayor does meet the minimal professional qualifications for nomination to the Supreme Court. Her ten years of service on the Second Circuit Court of Appeals ensures that. At the same time, her record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee's qualifications do seem better than Harriet Miers' were; but Miers' nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and possibly Clarence Thomas had professional qualifications similar to or worse than Sotomayor. That said, Supreme Court appointments are almost never purely merit based. Sotomayor joins a long line of nominees who were chosen in part because of political, ethnic, or gender considerations. Finally, this may be a good time to remind readers that I have long argued that judicial philosophy and ideology are legitimate considerations for senators to take account of in deciding whether or not to oppose a Supreme Court nominee. Unlike some on the right, [3]I took that view during the Bush Administration, and I hold the same position today. On that point, I find myself in agreement with none other than Barack Obama, who opposed John Roberts' nomination based on his judicial philosophy despite conceding that [4]"[t]here is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge." Obama was, in my view, wrong in his specific objections to Roberts, but absolutely right in concluding that judicial philosophy should be considered in addition to professional qualifications when assessing judicial nominees. At this point, I am far from favorably impressed with Sotomayor's judicial philosophy. References 1. http://volokh.com/posts/1242399411.shtml 2. http://volokh.com/posts/1242399411.shtml 3. http://volokh.com/archives/archive_2007_05_13-2007_05_19.shtml#1179281659 4. http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
