The media exploded today with news of Obama’s Supreme Court pick, Sonia Sotomayor of the Second Circuit. I won’t direct your likely-already-informed opinion on this pick. There are just two points to highlight:
1. We knew this would be a she-nominee, and I’m glad. A lot of conservatives claim that law is an entirely objective endeavor, but even every conservative has a different take on what exactly “objective” means. Above all our Constitution rests on the principle that societal factions can only coexist if they are allowed to hustle their strengths against on another.
I appreciate that even “women’s issues” cases before the Court are about applying the law and not about what it’s like to have a uterus. But countless experiments have proven that a woman’s life experience is different from a man’s. In psych class I read a study about a male-to-female sex change patient’s dramatic experience with just how extreme are the differences between how society treats men and women (I’d find a link for you but am having a hard time sifting through all the pop-ups resulting from googling “sex change”!). If we have such a different experience I want my faction represented and asking the right questions. It’s not like women are a “minority.” I’m glad to see that the Court isn’t settling into a boys’ club.
2. I hate Sotomayor’s gun stance. As a 1L last year my hand in Heller was minimal (I translated French language weapons case law and legislation for an amicus brief), but I cut my teeth in the conservative community on the all-hands-on-deck frenzy surrounding that case. It’s near and dear to my heart — not to mention critical and right!
Sotomayor makes it perfectly clear that she opposes incorporating the Second Amendment. Forgive my intellectual laziness at getting my news from blogs and regurgitating the same here, but see Dave Kopel’s description of Sotomayor’s gun jurisprudence below:
Marie Gryphon at Point of Law discusses how the Court may treat incorporation despite antiquated Supreme Court precedent expressly rejecting incorporation:
What the [Second Circuit panel, including Sotomayor] missed, however, was the significance of the fact that Presser was decided before the development of modern incorporation doctrine, which applies most of the bill of rights to the states through the Due Process Clause of the 14th Amendment. The Presser court therefore addressed only the issue of whether the Second Amendment applies to the states directly, and did not consider the question of whether the Second Amendment is incorporated by the 14th Amendment.
A Ninth Circuit panel recently took this better view, holding that Presser did not control the question of incorporation and that the individual right to keep and bear arms does indeed apply to the states via the 14th Amendment’s Due Process Clause.
The legal argument for incorporation of the Second Amendment is pretty strong, and it’s hard not to see the 2nd Circuit panel’s opinion as deliberately ducking a question about which its members, including Sotomayor, might have had public policy misgivings. Look for some close questioning about the Second Amendment during Sotomayor’s confirmation hearings from senators close to the NRA and other gun rights groups.
3. Here are some statements, non-directive as promised:
“I have spent my years since Princeton, while at law school and in my various professional jobs, not feeling completely a part of the worlds I inhabit,” she said, adding that despite her accomplishments, “I am always looking over my shoulder wondering if I measure up.”
SS’s NYT quote actually makes me like her more. She strikes me as such a Scalia-esque persona with her big opinions and loud, often-unpopular statements. This description of impostor syndrome tacitly confirms that she intends to influence ideology more than law. Obvi as a Justice she’ll have the opportunity (and responsibility?) to influence both, but Sotomayor has expressed her preference for influencing policy — read, ideology — rather than law. I’m generously assuming this is a preference — if Sotomayor doesn’t recognize the difference between policy and law then her infamous Duke slip indicates a much more dangerous problem.
Judge Sotomayor’s humility makes it seem like she intends to make the most of this “empathy” charge. She knows she was appointed to apply the rule of law with a thick dollop of compassion. It’s a loose-y goose-y application of the rule of law, but compassion and rules are not necessarily mutually exclusive. So good for her for effectively acknowledging that Obama chose her for a specific reason. She would not likely have been chosen were it not for this specific attention to the relatively unique aspects of her person. I respect her attention to a responsibility to pay it forward.
–> Prof. Epstein:
…[A]ffirmative action standards are a bad way to pick one of the nine most influential jurists in the U.S., whose vast powers can shape virtually every aspect of our current lives. In these hard economic times, one worrisome feature about the Sotomayor nomination is that the justices of the Supreme Court are likely to have to pass on some of the high-handed Obama administration tactics on a wide range of issues that concern the fortunes of American business.
We have already seen a president whose professed devotion to the law takes a backseat to all sorts of other considerations. The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.
In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.
–> An old piece, but see Jeffrey Rosen “indicting” Obama re Sotomayor.
–> Finally, one of my top three female role models Neomi Rao recommends some questions the nominating committee should ask:
– What matters most, the law or the result? Or put another way, when the law requires a result that you don’t like, what do you do? This might seem like an easy question. Judges interpret the law, they don’t make it. That was the view of President George W. Bush and his nominees to the high court. Mr. Obama has made it clear, however, that he thinks the law should often be about results — that the Constitution evolves to reflect modern times and statutes may be twisted to achieve justice. Any judge worth the name recognizes that the law will sometimes lead to a result of which she personally disapproves. When this happens, the judge must implement the law, not her personal preferences.
The president and Congress are elected to focus on results, to get things done, to bring about change. They can choose to implement empathetic policies that favor the weak and pull up the disadvantaged. In our constitutional system, however, the judiciary does not simply duplicate this political process. The Senate and the American people should make sure that a nominee to the Supreme Court understands the difference.