Posted by Jonathan Adler:
LawProfs for Sotomayor:
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247092496
Today the Senate Judiciary Committee [1]posted a letter supporting
confirmation of Judge Sonia Sotomayor to the Supreme Court signed by
over 1,100 law professors from around the country. [2]Organized by the
Alliance for Justice, and promoted by professors at various schools
([3]including Columbia, which released the letter to the press), the
letter makes the standard case for Sotomayor's confirmation:
Judge Sotomayor will bring to the Supreme Court an extraordinary
personal story, academic qualifications, remarkable professional
accomplishments and much needed ethnic and gender diversity. We are
confident that Judge Sotomayor�s intelligence, her character forged
by her extraordinary background and experience, and her profound
respect for the law and the craft of judging make her an
exceptionally well-qualified nominee to the Supreme Court and we
urge her speedy confirmation.
The letter is pretty standard stuff for this sort of thing. One
paragraph in particular caught my eye:
As a federal judge at both the trial and appellate levels, Judge
Sotomayor has distinguished herself as a brilliant, careful,
fair-minded jurist whose rulings exhibit unfailing adherence to the
rule of law. Her opinions reflect careful attention to the facts of
each case and a reading of the law that demonstrates fidelity to
the text of statutes and the Constitution. She pays close attention
to precedent and has proper respect for the role of courts and the
other branches of government in our society. She has not been
reluctant to protect core constitutional values and has shown a
commitment to providing equal justice for all who come before her.
(emphasis added)
Having now read dozens upon dozens of Sotomayor's opinions and other
decisions in which she joined, I think this is a defensible summary of
Judge Sotomayor's record on the bench (though reasonable people could
also reach a somewhat different conclusion). What I wonder, however,
is what percentage of the 1,100-plus signatories to the letter are
sufficiently familiar with her record to have reached an informed,
expert judgment?
I am sure many academics have spent the last several weeks poring over
Sotomayor's work, and that many such folks signed the letter. But I am
also quite confident that some of those who signed the letter have not
read more than a case or two, and based their judgment on news reports
and other second-hand information. For some, I suspect, merely
receiving a solicitation from a colleague (or from the AFJ) to support
a liberal president's liberal nominee was sufficient.
The whole point of a law professor letter is to establish
authoritative support for a particular position. It communicates the
message that presumed experts have come to a reasoned, and presumably
authoritative, conclusion that non-experts should heed. In this case,
the position espoused is not merely that Judge Sotomayor should be
confirmed -- a view which most law professors almost certainly share
-- but also that her opinions demonstrate certain, specific
characteristics that are desirable as a judge. The underlying claim
may be true. Yet I doubt all 1,100-plus signatories took the time to
assure themselves of this fact before lending their names, and the
authority of their positions, to the letter.
Let me be clear that my concern is not with the substance of the
letter. [4]I do not oppose Judge Sotomayor's confirmation and believe
that reasonable people could well conclude that her record support's
the letter's claims. I assume that many signatories and those who
solicited signatures are familiar with Judge Sotomayor's record. I
also have little doubt that most all of those on the letter would
support Judge Sotomayor's confirmation even after reading every jot of
writing she's ever produced. My concern is that some legal academics
appears willing to place their political preferences ahead of their
academic integrity and would sign such a letter before confirming, for
themselves, that everything the letter says is actually true. [5]This
is not the first time I've expressed this concern. Unfortunately, I
doubt it will be the last.
References
1.
http://judiciary.senate.gov/nominations/SupremeCourt/Sotomayor/upload/070809JointLetter.pdf
2. https://secure.ga1.org/afj/notice-description.tcl?newsletter_id=25715214
3.
http://www.law.columbia.edu/media_inquiries/news_events/2009/july2009/SotomayorProfs
4. http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244505308
5.
http://www.volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1114099059
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