Before I launch into this, I’d like to emphasize (if I don’t do it enough below): we don’t know enough about Sotomayor to make a firm yes/no judgment yet. But considering the incredible importance and weight when deciding on one of those people gets to be a part of the club of nine unelected justices who meet in secret, serve for their entire lives, and have the power to overrule the duly elected representatives of a nation of over three hundred million people, nitpicking is necessary.
In a perfect world, I would side with Will Wilkinson on saying that I would prefer libertarian judicial activism. (Well actually not, in a 100% perfect world that incorporated technology that doesn’t exist yet I would have computers programmed with the perfect judicial philosophy decide 95% of cases, and when they exploded [this happens often] on the 5% of “hard cases” it could go to a human-based Supreme Court. But I digress).
But we don’t live in a perfect world, robots or not. So a more realistic judicial philosophy obviously has to take into account all these things like empathy and personal experience and all that jazz. However, the judicial philosophy has to take these things into account, not be defined by them. From Obama’s statements and choices on what to emphasize in Sotomayor, I’m unconvinced either way that she’s a great or terrible choice. We need to know more about her actual judicial philosophy. The only thing that I’m worried about so far is the ridiculous amount of emphasis on “empathy,” rather than articulating the needed emphasis on her track record.
So we need a basis of what “qualified” means in order to take an initial judgment of Sotomayor. She’s “qualified” by her long history of serving on the district and appellate courts. I’m not convinced by the Right’s attacks on her intelligence, but I’d prefer her to have more of a record of accomplishment and distinction than simply “time served.”
Yes, we all know the Ricci case was terrible (and likely more embarrassing once the S.C. reverses it). What is puzzling and troubling was the appellate panel not issuing a full opinion on something that obviously needs a lot of explanation. They issued a per curiam one-paragraph opinion that obviously was unable to delve into the incredibly complex legal reasoning one needs in this lightning-rod of a case.
There is the less-publicized, but just as troubling, Maloney v. Cuomo case involving the Second Amendment. Again, Sotomayor’s appellate court issued a per curiam opinion that ignored the rich legal history of 14th amendment incorporation into the states and, with this, basically ignored that the Second Amendment exists.
Now I’m no fan of Due Process incorporation and never have been, but even I recognize precedent. Do justices now get to pick and choose which parts of the Bill of Rights gets to apply to the states and which don’t?
And this leads me to my biggest concern about Sotomayor: that she might not have a consistent judicial philosophy. In a TNR piece advocating for her, a law professor says “President Obama repeatedly has said that he wants a justice who will show empathy. This means a justice who will look at law as it affects people’s lives and not just as an abstract set of rules. Sotomayor is likely to be this justice.”
This, to me, is not a good thing and is exactly what angry conservatives talk about when justices “make law” (perhaps Sotomayor would prefer “make policy”?). someone who selectively adopts or rejects laws based on “how it affects someone’s life” has close to zero deference to legislature. When a law is imperfect and has loopholes, it should be the legislature’s job to fix it, not an unelected Court’s.
I know I shouldn’t be hoping for a textualist like Scalia in an Obama SC pick, and I even know that hey, Obama won and he gets to pick and choose. But what’s most important to me, Right or Left, is picking a justice with a consistent and understandable judicial philosophy. Yes, no one can have an all-encompassing judicial philosophy and there will always be a subjectivity. But the mark of a good justice is trying to define down that subjectivity to the smallest possible margin, not completely throwing up their hands in abandon at the hopelessness of crafting a completely perfect philosophy and decide that, hey, everything can be subjective.
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