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.