Surprise! It's Sotomayor

by Pejman Yousefzadeh on May 26, 2009

The New Ledger’s writers and colleagues will be weighing in on the nomination of Justice Sonia Sotomayor to the Supreme Court throughout the day. Interested in commenting? Head over here.

Pejman Yousefzadeh: Justice Sotomayor? Not So Fast.

Having known that the President would never nominate an originalist to the Supreme Court, I argued that President Obama ought to nominate Cass Sunstein to the Supreme Court. While I have doctrinal differences with Sunstein, he has sterling credentials, he holds to a laudable philosophy of judicial minimalism, and his scholarly achievements would have made him an excellent Supreme Court Justice. Equally excellent would have been Judge Diane Wood, of the Seventh Circuit Court of Appeals. I have many more doctrinal differences with her than I do with Sunstein, but anyone who can hold her own in arguments against the likes of Judges Richard Posner and Frank Easterbrook earns praise and respect.

Neither Sunstein nor Wood has gotten the Presidential nod in order to replace Judge David Souter, however. As we know, the President nominated Judge Sonia Sotomayor of the Second Circuit for elevation to the Supreme Court. To be sure, judge Sotomayor is bright, having graduated summa cum laude from Princeton, and having gotten her law degree at Yale. But not all bright people turn out to be sterling judges, and when one considers Judge Sotomayor’s record, one finds causes for concern.

Much of the concern revolves around Judge Sotomayor’s intellect and temperament, as this now-famous piece from Jeffrey Rosen testifies. While I have some concerns regarding the sourcing of Rosen’s piece and the degree to which he may or may not be familiar with the body of Judge Sotomayor’s work, his reliance on anonymous sources is significantly less troubling than what those sources have to say about Judge Sotomayor’s performance on the bench, including her ability to make her way through complex legal questions, her behavior towards those who appear before her, and the degree to which she adds value as a judge on the Second Circuit. In a follow-up to his piece, Jeffrey Rosen notes that while many of the reviews Judge Sotomayor has garnered are good ones, a number are not:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive–not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system–as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Needless to say, these negative reviews need to be part of the discussion when considering Judge Sotomayor’s nomination. In addition to these generalized complaints, Rosen recounts an instance in which Judge Ralph Winter, Judge Sotomayor’s colleague on the Second Circuit, was forced to pen a footnote stating that Judge Sotomayor’s opinion in a case “might have inadvertently misstated the law in a way that misled litigants.” Everyone makes mistakes, of course, but appellate court judges have much less margin for error than do others, and with colleagues and clerks to help them, they don’t need much of a margin for error in the first place. If Judge Sotomayor’s error is the type of thing that characterizes her work as a judge, then we have reason to be troubled.

Equally troubling is Judge Sotomayor’s belief that courts of appeal are where policy is made. Not so; pursuant to the Constitutional separation of powers, Congress makes the law, the Executive branch enforces the law, and judges are bound to interpret the law. Judge Sotomayor’s commentary upends the separation of powers, and invites judges to become judicial activists. In the video, Judge Sotomayor laughs off her comments regarding judicial activism, but for those of us who are interested in preserving the integrity of the separation of powers, her comments come across as significantly less funny.

Of course, Judge Sotomayor has an inspiring life story, much as Justice Clarence Thomas does, and that life story will sell many people on the idea that she deserves to be the next Associate Justice of the United States. But no one ever thought that inspiring life stories are sufficient to merit nomination and confirmation to the Supreme Court. Indeed, it seems that in some ways, Judge Sotomayor has gleaned the wrong lessons from her life story. No one doubts that she has lived a rich life. But why does Judge Sotomayor believe that a white male may not have also lived a rich life? I was never a fan of the empathy requirement that President Obama set out for his next Supreme Court nominee, but if we assume for a moment that my arguments on that score are in error, let us ask ourselves just how empathic Judge Sotomayor sounds when she contends that it is okay to suggest or contend that white males have not lived rich and fulfilling lives. In these comments, empathy has given way to stereotypical derision on the part of Judge Sotomayor.

I do not contend that Judge Sotomayor is anything but an accomplished and impressive attorney. But there remain issues about her background that require further examination and analysis. However noteworthy her nomination, given her background, there should be no hesitation on the part of the Senate to vote her down if the doubts surrounding her record and experience are not adequately resolved.

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