Assessing Sotomayor

Matthew Hoy
By Matthew Hoy on July 16, 2009

The testimony is complete and Judge Sonia Sotomayor will certainly become the next Supreme Court justice – not that she has earned it. Having watched much of the testimony and read lots of transcripts, I’ve come to the conclusion that Sotomayor is either a Roberts/Alito/Scalia/Thomas clone or a baldfaced liar.

I don’t think President Obama is as bad at picking his judges as Reagan and Bush 41 were.

Based upon her testimony, you’d think that the speeches made by her over the years touting her gender and ethnicity as superior judging material were given by some evil doppleganger. You would have to believe that her 12-year tenure on the Puerto Rican Legal Defense and Education Fund was akin to that of serving on the board of Fannie Mae or Freddie Mac – a patronage job and a good paycheck, but she didn’t actually know what was going on.

If Sotomayor had been nominated by President George W. Bush and had given testimony like this – that had been consistent with 20-plus years of actual judging – I can guarantee you that Sen. Obama would not only have voted against her, he’d have supported a filibuster.

Sotomayor’s testimony has given some “conservative” Democrats sufficient cover to vote for her and liberal democrats don’t really believe a word she’s said.

At least, you’ve got to hope she’s lying, because that’s the better explanation than that she is stupid.

From today’s testimony and questioning by Sen. Jon Kyl [PDF format]:

KYL:  Let me ask you about a comment you made about the dissent in the case. A lot of legal commentators have noted that, while the basic decision was five to four, that all nine of the justices disagreed with your panel's decision to grant some rejudgment; that all nine of the judges believed that the court should have been -- that the district court should have found the facts in the case that would allow it to apply a test. Your panel had one test. The Supreme Court had a different test. The dissent had yet a different test.

But in any case, whatever the test was, all nine of the justices believed that the lower court should have heard the facts of the case before some rejudgment was granted. I heard you to say that you disagreed with that assessment. Do you agree that the way I stated it is essentially correct?

SOTOMAYOR: It's difficult because there were a lot of opinions in that case. But the engagement among the judges was varied on different levels. And the first engagement that the dissent did with the majority was saying if you're going to apply this new test, this new standard, then you should give the circuit court an opportunity to evaluate the evidence...

KYL: Judge, I have to interrupt you there. The court didn't say, "If you're going to apply a new standard, you need to send it back." All nine justices said that summary judgment was inappropriate, that the case should have been decided on the facts.

There were three different tests: the test from your court, the test of the majority of the Supreme Court, and the test of the dissent. Irrespective of what test it was, they said that the case should not have been decided on summary judgment. All nine justices agreed with that, did they not?

SOTOMAYOR: I don't believe that's how I read the dissent. It may have to speak for itself, but I -- Justice Ginsburg took the position that the Second Circuit's panel opinion should be affirmed. And she took it by saying that, no matter how you looked at this case, it should be affirmed. And so I don't believe that that was my conclusion reading the dissent, but obviously, it will speak for itself.

KYL: Well, it -- it -- it will. And I guess commentators can -- can opine on it.

If Sotomayor reads the opinions in Ricci v. Stefano and can’t determine that not a single justice supported her handling of the case, then it betrays a level of incompetency that would disqualify a first year law student. Of course, this is something The New Republic’s Jeffrey Rosen had suggested might be the case before he was whipped back into line.

While Sotomayor will undoubtedly be confirmed and turn out to be a more than suitable replacement for Justice David Souter, proponents of the “living constitution” and “progressive” judicial activism have to be disappointed, because Sotomayor willingly abandoned that field in this hearing. Maybe she thought she couldn’t defend it. However, if you can’t make the case for the “living constitution” when you’ve got 60 votes, then maybe you’ve lost the debate in society.

0 comments on “Assessing Sotomayor”

  1. "some rejudgment"? Wow can't they get someone with a little knowledge of legal technical terms to transcribe these things. Someone who knows the term "Summary Judgment"?


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