Sanity Injection

Injecting a dose of sanity into your day’s news and current events.

Sotomayor: Judge or trial lawyer?

Posted by sanityinjection on July 9, 2009

I return to the question of confiormation of President Obama’s Supreme Court nominee, Sonia Sotomayor. As readers may recall, I generally start from the position that the President has a right to nominate someone who shares his general political philosophy, provided he or she is well qualified.

With this in mind, I found this study by Washington Post writer Jerry Markon instructive. Markon and his colleagues looked at 46 different cases Sotomayor participated in where there was a split decision to try to get a sense of her philosophy and judicial approach. They concluded that Sotomayor seems to fit the label of a moderate liberal, well within what you would expect from a Democrat nominee.

As mentioned, that does not concern me. Nor do I question whether Sotomayor has sufficient legal and judicial experience to be properly considered for the Supreme Court. But there is something else that emerges from Markon’s story that I do find to be of concern. While there is no question that she studies the details of each case carefully and thoughtfully, what emerges is a picture of someone whose approach more closely resembles a trial lawyer advocating for a client than an appellate judge weighing the propriety of the actions of a lower court.  The suggestion is that Sotomayor has a tendency to want to retry the initial case rather than focus on whether the lower court acted properly. In doing so, she supports her arguments by pulling in a wealth of outside data that may or may not be directly relevant to the case at hand.

In short, I am left to wonder whether Sotomayor, in many of her opinions, is advocating rather than judging. Clearly that is not the role that Supreme Court Justices are supposed to play. I would hope that Sotomayor will be asked about this directly during her hearings. It will be interesting to hear what her response will be.

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2 Responses to “Sotomayor: Judge or trial lawyer?”

  1. Randy Barnett has a great piece up in the WSJ begging the Senate to make Sotomayor’s (or any Supreme Court nominee’s) confirmation hearings more meaningful. Instead of the eternal dance of trying the nominee to commit herself on issues that might come up before the Court (which she is never supposed to do), they could actually ask specific questions about how she interprets various clauses of the Constitution:

    http://online.wsj.com/article/SB124744026183929741.html

    Of course, as Barnett points out, that would require the Senators to actually know something about the Constitution.

  2. And in similar vein from Jonathan Turley:

    http://blogs.usatoday.com/oped/2009/07/retire-the-ginsburg-rule-.html

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