Topic A - The Sotomayor Hearings, Day Three

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Wednesday, July 15, 2009; 10:45 AM

The Post asked legal experts to weigh in on the third day of Sonia Sotomayor's confirmation hearings.

JONATHAN H. ADLER

Law professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law

Sonia Sotomayor has started to sound more like the sort of nominee we would have expected from a President McCain than a President Obama. When questioned about President Obama's "empathy" standard for judging by Sen. Jon Kyl (R-Ariz.) late Tuesday afternoon, she bluntly replied, "I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging." She added: "I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge." These words could just as easily have come from Bush judicial nominees Samuel Alito or John Roberts.

Wednesday morning, Sotomayor continued to back away from the clear meaning of her various speeches, downplaying the role personal experience plays in judging and further distancing herself from an explicitly liberal or progressive view of the law. Her speeches, she told Sen. John Cornyn (R-Texas) were more about inspiring female and minority students and young lawyers to pursue their potential.

In response to further questions, she denied any role to judges in changing the law and suggested justices should be reluctant to rely or refer to foreign or international law, again disclaiming reasonable interpretations of her prior speeches. It is no wonder that some liberal academics, such as Georgetown's Louis Michael Seidman, are upset with her performance.

At times Sotomayor's performance has been so cramped that she has been reluctant to provide cogent and complete explanations of existing case law. Asked by Sen. Tom Coburn (R-Okla.) whether there is a constitutional right to self-defense, she said she could "not remember a case where the Supreme Court has addressed that particular question," she hemmed and hawed a bit, and then tried to explain the law of self-defense in New York state. Not once did she reference the extensive discussions of the natural right to self-defense underpinning the second amendment right to keep and bear arms recognized in District of Columbia v. Heller.

At one level, Sotomayor's caution is understandable, as a defensive posture may be the surest way to prevent a "meltdown" -- the only thing that could keep her from the court. It is almost as if she and her White House handlers believe that a more forthright explication of a liberal judicial philosophy -- a philosophy like that articulated in her speeches and defended by the president -- would pose an obstacle to her confirmation.

If so, this would be a remarkable concession to the way conservatives have sought to frame judicial confirmations. If a Senate with sixty Democrats would be wary of confirming an overt and unapologetic liberal -- as this Senate has thus far been regarding the confirmation of Dawn Johnsen to the Justice Department's Office of Legal Counsel -- does this mean there is little political support for a progressive constitutional vision? It seems conservatives are winning the larger war over the judiciary, even if losing the battle over this nomination. President Obama's nominee will be confirmed, but not because she embraced his philosophy of judging. Indeed, it seems she will be confirmed, in part, because she rejected it.

PATRICIA M. WALD

Chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, 1986-1991

It seems as though every confirmation hearing ultimately comes round to a clash of accusations and defenses about whether judges should "apply" law or "make" it. It is like a Kibuki performance with players wearing masks identifying heroes and villains: the good judge's mask proclaims he or she only "applies" law; the bad judge's mask taunts that he or she "makes" law. The reality of the judicial role is not nearly so clear-cut.

Yes, judges must be faithful to the "law" -- as best they can discern what the law is in any given case. If a statute or the constitution or a prior precedent lays out clearly the law that fits a case, the judge applies it without regard to whether she thinks the law as enacted or declared is wise or foolish.

But what if it is not at all clear that the drafters of the law meant to apply it to the facts before her, or that a prior precedent is more dissimilar than similar to the situation in the current case? What if the legislators expressed conflicting opinions about how they thought the law should be applied or never anticipated the variety of situations that litigants later tried to bring within its boundaries?

Decisions about whether statutes or decisions apply call for that elusive quality called, aptly, judgment -- that means discretion in deciding whether the goals of the statute or the principles of earlier decisions are relevant in later and different factual contexts. Judgment means bringing one's own intellect and life experiences (not preferences or biases) in predicting the consequences of deciding one way or another in terms of those the statute or prior decisions meant to protect. Erase the indispensible element of judgment from judging and you have robot judges or do-nothings; the disastrous experience with the federal sentencing guidelines, which sought to eliminate judicial discretion in criminal sentencing, is a dramatic testament to the failure of such a policy.

Indeed, Congress and the founding fathers know that instinctively. Why else are our laws filled with delegations to the courts and agencies to "balance" cost and efficiency and other factors in making judgments; mandates to rule "in the public interest," dictates that official actions must be "reasonable under all the circumstances" or that agency rules must be supported by "substantial evidence?"

Confirmation proceedings should reflect a more realistic profile of what appellate judges do to apply "the law" to keep our nation on a steady legal course. Nominees might be evaluated on their judgment qualities in whatever careers they had pursued; certainly a wide-lens outlook and broad familiarity with many facets of American life would be relevant, along with analytic agility and intellectual acumen. Sonia Sotomoyer would pass the new test and the important role of judges would be made far clearer to the public -- a worthy end in its own right.

GERALD TORRES

Professor at the University of Texas School of Law; counsel to Attorney General Janet Reno; knew Sotomayor when she was a law student

Trying to discern the exact contours of Sonia Sotomayor's judicial philosophy within the context of the shadow theatre of the Senate hearings is difficult. Both the nominee and the senators have their agenda, and while case names and doctrine are attached to the questions, Sotomayor resisted the impulse to offer opinions on how she would think about cases that are yet to be decided by the Supreme Court. Wednesday, the issue of guns, particularly the second amendment, and that of the separation of powers, particularly national security superiority, generated the most heat. But the nature of the right guaranteed in the second amendment seemed to devolve to base issues of self defense rather than issues of the meaning of "fundamental" in the constitutional sense. In many ways the most interesting questions were asked by Sen. Arlen Specter, but, of course, they could not be directly answered, they could only be artfully parried. Rather than seeking an answer to how she might decide a particular case, he pressed her to say what standards she would use to accept or decline to review a case involving separation of powers. Of course, this hypothetical was premised on a real case, and in her answer Sotomayor again illustrated why she is a wise choice and a brilliant lawyer.


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