Questions Sotomayor Still Must Address

Patricia M. Wald
Thursday, July 16, 2009; 3:07 PM

During the questioning of Sonia Sotomayor, I was reminded of my law school nights cramming for exams: no matter how diligently you read the cases and learned treatises about what the "law" is, you were never prepared for the essay questions about how you would decide the case or how a future court might decide a slightly different case. Sotomayor's polite but persistent refusal to allow even a glimpse into her judicial orientation (she would say she had none, though her speeches suggest she has at least thought about it) is understandable in view of the fate of prior nominees who were more forthcoming -- in my tenure on the D.C. Circuit five colleagues were nominated; three made it, two did not.

The dialogue between the judge and her senatorial inquisitors did, however, surface some critical problems facing the federal judicial system that affect ordinary people's access to and treatment in it. In making her case that she would and has decided cases impartially without regard to the gender, race or ethnicity of the parties, Sotomayor justified the need for diversity on our courts with the notion that it is comforting for people of all types to see their counterparts on the bench and know that their plight and arguments will be "understood" -- but "understanding" should not "influence" the decision making itself. This is a hard and perhaps unnecessary line to draw. Understanding a litigant's interest or predicament very often does become legally relevant to motive and impact in many kinds of cases and in evaluating facts from record material, as the judge herself pointed out in earlier speeches. The public might be more comforted if it knew judges used their "understanding" in legitimate but important ways in decision making.

In justifying the summary treatment on appeal of the Ricci firefighters case, Sotomayor told us 75 percent of court of appeals decisions are so rendered without revelation of reasons of their own and without publication. Most cases have little chance of getting beyond that; the Supreme Court agrees to hear only 1 percent of the 7000 petitions it gets, and lower court rulings without discussion are unlikely candidates. Past justices have admitted they sometimes base their votes for or against certiorari on whether they believe they can prevail in the Supreme Court. Sotomayor declined to opine on whether the high court should take more cases -- the number of opinions they write each term has dropped by half since my time -- even though the selection of cases by the court on which to rule is a non-transparent but vitally important part of the its work.

And in seeking to deflect the criticism of judges who cite foreign law in their decisions, she said there was no authority in the constitution or law to "use" it in "influencing" decisions. Its citation, she suggested, was primarily to educate others in what was going on in the rest of the world. Again, a less timid defense of looking at how other countries deal with similar legal problems in a globally dependent world might be in order. We openly extol our institutions and legal theories to the rest of the world; why should we not be open to looking at theirs? One has only to look at the founding fathers' Federalist Papers to see their repeated citations to other countries' experiences and to the "law of nations;" our ninth and tenth amendments reflect a firm belief that people have rights over and above those they have delegated to the government, federal or state.

Sotomayor did a superb job in maneuvering a smooth course toward a deserved seat on the Supreme Court, but, hopefully, she and others will think about some of these enduring problems in the judicial system after they get there.

The writer was chief judge for the U.S. Court of Appeals for the District of Columbia Circuit from 1986 to 1991.

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