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Sunday, May 3, 2009

Controversial Video of Sotomayor Surfaces

A video of Court of Appeals Judge Sonia Sotomayor, reportedly on Obama's short list to replace David Souter on the Supreme Court, has come to light (video and transcript via Volokh Conspiracy). Sotomayor stated as follows during a panel discussion at Duke Law School in 2005:
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. [audience laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm . . you know. [audience laughter]
Here is the segment of the video:

Obviously, this video will raise concerns about Sotomayor being an activist judge who wants to make, rather than apply or interpret, the law. In other words, a perfect Democrat nominee. And a Republican nightmare. I wonder how the Great Democratic Hope, Arlen Specter, will react.

I don't think these remarks in and of themselves are a deal breaker for Sotomayor. There obviously is a lot more to the woman than an off-handed comment. Sotomayor obviously was aware that the words were being recorded, and tried to laugh her way out of it.

Said in jest or not, the video sure doesn't help Sotomayor's prospects. To quote another Supreme Court contender, Deval Patrick, as interpreted by Barack Obama, these were words, just words.
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  1. There is no reason why the quote should hamper her prospects unless it is willfully distorted.

    You quote one part of an answer to a question without quoting the question, or the part of the answer that preceded the quote - which the quote contrasts with - or the rest of the answer.

    As the Volokh conspiracy post you actually refer to - which also links the entire tape, not a 30-second hit piece - points out, her answer was in response to a question about the difference between trial courts and the court of appeals; she said that trial courts focus on one individual case, but appellate courts make decisions with broader implications. The "policy" she is referring to is the precedential value of appellate opinions: appellate courts make decisions which, unless they are overturned by the Supreme Court (which happens in only a negligibly tiny fraction of cases) set the terms of decision for all similar cases in an entire Circuit or possibly the nation. So obviously they make policy - not by "judicial activism" but by simply deciding cases and settling unclear aspects of law, which is what they are supposed to do.

    She was laughing at the recognition that certain kinds of people would obviously jump on her use of the term "policy", take her words out of context, and gin up an empty controversy grounded on ignorance and distortion. Looks like she was right.

  2. Did you actually listen to the full tape? You mention the "part of the answer that preceded the quote," but Sotomayor had almost no comments on the issue immediately prior to the clip, probably 15-30 seconds at most. The comments you are referring to actually were stated by a different judge. Having listened to the full tape after reading your comment, I am struck by the fact that the clip actually pretty fairly showed the context of the comment. As I said in the post, I don't think it is a deal breaker for her and I acknowledge that one could argue she was just joking around, but I don't think it is fair to argue that the clip is misleading. There may be good arguments for her to be on the Supreme Court, but that is not one of them.

    Also, as someone who has represented parties on appeal, I find it disturbing that the rights of individual parties may be subjugated to broader judicial policy concerns. I know it goes on, but that doesn't make it right. I would hate to think that my client might have lost an appeal (or won, for that matter) because of the appellate court's concern for the next case. Apply the law to this case, so that the parties' rights are protected, and worry about the next case next time. Such conduct is a form of judicial activism which is just as pernicious as more open policy making.

  3. Now why Duval Patrick's name is coming to light. They'll say we tried to vet Patrick but you right wing nuts didn't let us. Sooo we give you Sotomayor.

  4. How in the heck did this woman be allowed to get anywhere near a courtroom? If she wanted to change policy, she should have run to be an legislator, that is where you change policy. Judges should only look at the law and Constitution for guidance

  5. I just had my Con Law final today. It was brutal.

    It's good to know that my understanding of the law has no bearing on my prospects for the Supreme Court, though.

  6. If this is the best we can do, she's in.