Sotomayor's Aristotle
Most lawyers (and any one who's seen Legally Blonde) know well Aristotle's famous phrase: The law is reason free from passion.
Thus far Sonia Sotomayor's confirmation hearings have been reasonably free of passion. There have been no silver bullets, no arguments, no gaffes, no slip ups and given her metered, dulcet tones the words hot blooded Latina do not come to mind. “I must say that, if there's a test for judicial temperament, you pass it with an A-plus-plus,” Senator Dianne Feinstein, a California Democrat remarks to laughs. “I want you to know that, because I wanted to respond, and my adrenaline was moving along. And you have just sat there, very quietly, and responded to questions that, in their very nature, are quite provocative. So I want to congratulate you about that.”
The crux of the debate remains Aristotle's premise: that judges should rule not from passion but with reason and precedent. To that end Jeff Sessions, the top Republican on the Senate Judiciary Committee, grilled Sotomayor on her now-infamous “wise-Latina” comments. Sotomayor responded that she was trying to make a play on former Supreme Court Justice Sandra Day O'Connor's famous statement that a wise man and a wise woman would inevitably come to the same conclusion. “So I was trying to play on her words. My play was -- fell flat,” Sotomayor said. “It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge. It's clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.”
Democrats have gone on the offensive today, actively criticizing the conservative nature of the Roberts court and its recent decisions. Feinstein, for example, spent much of her 30 minute Q&A with Sotomayor mulling over the court's recent upholding of a ban on partial birth abortion – in her view bypassing the Roe v. Wade precedent. "I'd also like to ask you your thoughts on how a precedent should be overruled,” Feinstein said. “In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so.” Sotomayor responded that, while there are times when precedent should be reexamined, those should be done “very, very cautiously.”
Republicans have focused their fire on a handful of Sotomayor's comments and cases, including the Ricci v. Destefano case, Maloney v. Cuomo and her comments about foreign law. Members from both sides bought up controversial cases, including Roe v. Wade, Kelo v. New London and Heller v. District of Columbia, looking for clues at how she would vote on similar issues. In every case she simply cited precedent law and would not speculate on how she'd rule in the future. “Few judges could claim they love baseball more than I do,” Sotomayor, an avid Yankees fan who famously ended the 1995 baseball strike, said to laughter. “But analogies are always imperfect. And I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It's a refrain I keep repeating because that is my philosophy of judging -- applying the law to the facts at hand. And that's my description of judging.”
Her answers to the hot button questions have had the well-worn texture of practice. But it has been her answers to Democratic probes intended to illuminate other corners of her resume that have provided tiny glimpses of her passions. We now know one of her godchildren is a member of the National Rifle Association and that she prefers to stay with friends when traveling instead of in hotels. One of her first responses concerned the Tarzan murder case she prosecuted while working under Robert Morgenthau in the New York District Attorney's office. She described movingly the impact of the case on one family that lost a child at the hands of a burglar. “That family was destroyed. They scattered to the four winds, and only one brother remained in New York who could testify,” she said. “That case taught me that prosecutors, as all participants in the justice system, must be sensitive to the price that crime imposes on our entire society.” But these moments have been rare. The bulk of the hearings have been, if not full of reason, lacking any passion.
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1
No gaffes? I'd say this one is:
KOHL: All right. Judge, all of us in public office, other than federal judges, have specific fixed terms. And we must periodically run for reelection if you want to remain in office. Even most state court judges have fixed terms of office.
The federal judiciary, as you know, is very different. You have no term of office. Instead you serve for life. So I'd like to ask you -- would you support term limits for Supreme Court justices, for example, 15, 20 or 25 years? Would this help ensure that justices do not become victims of a cloistered, ivory tower existence and that you will be able to stay in touch with the problems of ordinary Americans -- term limits for Supreme Court justices?
SOTOMAYOR: All questions of policy are within the providence of Congress first. And so, that particular question would have to be considered by Congress first. But it'd have to consider it in light of the Constitution and then of statutes that govern these issues. And so, that first step and decision would be Congress'.
I can only know that there was a purpose to the structure of our Constitution. And it was a view by the -- by the founding fathers that they wanted justices who would not be subject to political whim or to the emotions of a moment. And they felt that by giving them certain protections that that would ensure that -- their objectivity and their impartiality over time.
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Sotomayor's answer was ill-informed and amateurish.-
1.1
As a sitting judge, Sotomayor must weigh her words when she speaks outside the world of the courtroom because what she says can influence court cases. That said, I'd be glad - if I were you - that she saw fit to say that much since the Republicans were waiting in the grass for her to give the kind of detail they could use against her.
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Very nice post Jay, I believe you have simply put it plainly that Sotomayor is “well rehearsed” in her responses. You state “Her answers to the hot button questions have had the well-worn texture of practice.”
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Practiced answers unfortunately do not give us a clear picture of this woman about to become a Supreme Court Associate Justice. Also unfortunate, is that her entire judicial record has been white-washed like a beach-side home in Puerto Rico.
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Hopefully her earlier opinions as a “wise Latina” do become part of the white-washing and do not become part of her future as a true blue Democrat “policy-making” Judge. I somehow doubt that she will be able to refrain from her past boastful judgements, once she becomes a Justice.
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Maybe people in future voting booths will remember when the Democrats had control of both the Presidency, House and Senate, and never again allow this un-balanced political state of affairs we currently see ever occur again. -
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no gaffes
Sessions' comment about Judge Cedarbaum was quite the gaffe.
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4
Jay, lovely post, thanks. Really. But maybe Plato would be as relevant as Aristotle. Besides, those two LOVED to spar, ahem, debate way back then. Natch, I'm speaking of Plato's deconstruction of Socrates' dialogue with Phaedrus, especially the Famous Chariot Analogy: we are riding towards Truth while being pulled by two horses: white horse of reason vs. black horse of passion. Of course, the two horses are at odds during the journey. Maybe Sotomayor / other current Justices/ their backgrounds, empathy, decision making coin flips, etc. are closer to Plato than Aristotle. If nothing else, P vs. A. debate would throw the right wing talking points off-balance. What are your thoughts, Jay? Thx.
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4.1
And Jay, are you winning the in-chambers drinking game vs. your rival colleagues? I hope so.
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5
Can anyone defend Sotomayor's answer to Kohl. It's absolutely amateurish.
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6
I wish Jefferson Beauregard Sessions III would ask all the Republican questions.
That is a good thing (for democrats).
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That's "Morgenthau," not "Morganthal."
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8
If the law is reason free from passion, then the Terri Schiavo law would not have been passed. But I digress....
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9.1
Thank you.
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9.2
Actually, J N-S, I'm afraid you didn't quite. It's Morgenthau. Third time's a charm, though, I'm sure.
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9.4
Perfect. Thanks.
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unless, of course, deconstructiva, you think that someone who is married to someone in name only and who has "moved on" should get to be the arbiter of when treatment is withdrawn. That, aside from the Schiavo case, is really a problem.
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11
JNS, what's your view of Sotomayor's answer to Kohl. It looks pretty amateurish to me.
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12
Excellent spob. I am sure you feel the same way about a gay child who is disowned by his parents whose lover of 25 years has no say under the law, but the parents do.
Probably not.
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13
spob,
Clearly your eyes have been covered by the judgment you have already passed on Sotomayor. I saw you make reference to the Article III of the Constitution in a previous post. Didn't Sotomayor mention the Constitution, but you are so filled with bias against her, you did not see that. Second, while a constitutional amendment is required, all amendments to the Constitution come out of Congress. It is clear, while she is seeking to answer the question directly (for obvious reasons) she knows what she is talking about. You get fixated on the word "statutes" as if statutes have nothing to do with the governance of federal judges. Well, you are wrong and Judge Sotomayor knows much more about the subject than you.
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14
Well, spob, fair points, but marriage does involve power of attorney, property rights, and other legal stuff. That's a big reason why states get involved in marriage. And no, please don't extend this argument into whether gays, martians, etc. should have these same granted rights, however seductive that might be to debate here. Just heading that off at the pass. I simply asked lovely Jay for her thoughts on Plato's relevence to the players in this SCOTUS drama. Peace.
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15
The Constitution would have to be amended in order to change the term limits - or lack of - for Supreme Court Justices - Check
Congress must propose amendments to change the Constitution - Check
Congress must give serious considerations to the original intent of the Constitution before proposing an amendment - Check
The founders intended for justices to serve, essentially, for life to insulate them from "political whims" - ie, the desires and ideologies of those responsible for putting them in their position - Check
I fail to see the problem with her response. Did you expect a 30-page treatise on the judicial branch of our government?
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15.1
The only problem with her response - as far as the Republicans were concerned - is that she knows enough to write out their questions so she can refer to them when she loses her train of thought; knows enough to think clearly as to what she wants to say, and then says it in as few words as possible given the fact that she is a trained lawyer, and train lawyers often say in 10 words what you and I would say in one or two.
Obviously she has no intent to blow this Confirmation, given the number of Obama's choices who have had to remove themselves from consideration, and possibly embarrass Obama and herself.
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Oh good, looks like this is going to be just like the last thread.
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Democrats have gone
ofon the offensive today... -
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mmmmmmph......mmmmmmph.....
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From right after the "wise Latina" comment so beloved by wise-@ss white guys:
I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
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trifecta, pass a law, and I'll follow it--I have zero issues with laws allowing a person to designate a person to make end-of-life decisions outside of matrimony. I don't favor gay marriage. I also don't favor legislative blindness to the appalling cruelty of a parent denying a gay lover the right to visit his or her partner in a hospital. I'm not religious, so I don't have any moral disapproval of homosexuality. I also don't want to have society be forced to give its imprimatur to those relationships by allowing gay marriage.
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As for you, fhm, perhaps you ought to re-read article V, which contemplates states initiating the amendment process as well as congress. Second of all, statutes cannot take away life tenure, so her mention of that is just plain silly. -
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ogliberal, you've got to be kidding:
1) First of all, Congress isn't the only source of constitutional amendments (see US Const. Article V).
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2) "Congress must give serious considerations to the original intent of the Constitution before proposing an amendment"
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Does it?
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3) The founders intended for justices to serve, essentially, for life to insulate them from "political whims" - ie, the desires and ideologies of those responsible for putting them in their position
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True, but somewhat silly. The plain language of the Constitution grants life tenure (absent impeachment), so the structure is somewhat besides the point.
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Like I said, Sotomayor's response is head-smacking dumb. First of all, the crisp answer is that Article III section 1 of the Constitution provides for life tenure and that any change will require a Constitutional amendment. Her answer was far from crisp. Second, given that life tenure is what the Constitution provides, what in the world is she talking about when she mentions statutes? Moreover, it almost seems as if she's suggesting that Congress alone could change the landscape here. Third, even if she is talking about Congress launching a constitutional amendment (a stretch, given her mention of statutes and the failure to be specific), Congress is not the sole place from which Constitutional amendments can emanate, see generally US Const. Art. V, which makes her comment that "[a]ll questions of policy are within the providence of Congress first" exceedingly odd.
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And what to make of this: "And so, that first step and decision would be Congress'."
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Finally, Sotomayor makes reference to the purpose and structure of the Constitution. But that's completely unnecessary. The plain language of Article III provides for life tenure (absent impeachment). So there's no need to go to the structure. Moreover, what in the world does this mean: "But it'd have to consider it in light of the Constitution and then of statutes that govern these issues." Article III provides an easy answer.-
21.1
Congress must give serious considerations to the original intent of the Constitution before proposing an amendment
Who's view, spob? Jefferson's? Adams'? I hate to break this to you, but the founders frequently disagreed-often quite strongly-about certain issues. The constitution we ended up with is a result of compromises and political log-rolling. That's why the term "Founder's intent" is worthless from a practical perspective. Even when there was wide-spread agreement among the founders on an issue, it may not be practical-or possible-to make policy today simply because the country has changed significantly since it was founded. Of course, that assumes the founders where of one mind in the first place. This argument actually has traction among conservatives, and I wonder if it's just an excuse to be bigoted morons. And, while Sotomayor did avoid the crux of the question-it was about her view, after all-it was hardly bad enough to warrant a no vote.
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spob,
Yes, we all know that Congress is not the sole source of constitutional amendments. However, the reality is that any change involving federal judges is not coming from any other source. Second, federal judges, while their tenure is for life, are subject to statute. So while her answer was evasive, it was not totally without foundation.
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Spob: I concede you are not a troll. I am personally tired of wading through your posts, but that's my problem, not yours.
Engage away.
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23.1
I be disagreein' wi' ye 'ere...spongy be TOO a troll, an' a scumbag troll, a' tha'!
YARR!
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Sotomayor's answer was ill-informed and amateurish.
And he would know, given his expert experience with all that is ill-informed and amateurish.
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25
Well I thought the strategy was going to be let the radio wingnuts scream race, the elected GOP would pat themselves on the back for not repeating it and then they'd send out that little toad Session, who has the least to fear from Hispanic voters, to throw the red meat to the base. Come election time they'd say it wasn't me and get at least some support from Hispanic voters. Well man plans and God laughs.
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Of course, it had an especially even chance to work since the mainstream press (and that means you to Jay "infamous wise Latina woman comment") was pushing a narrative that totally obscures what she actually said or meant.
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But the GOP is an extremist group and they do what all extreme groups do -- go one step too far. So they've thrown in the towel and given up on Hispanic votes. Sessions may have started it, but Lindsay's meltdown comment is going to be seen in a whole new light now that he has basically told Sotomayor to go sit in the corner and take a time out and think about her bad behavior. How dare he suggest that she wasn't a good little girl. Perhaps if he Graham had the rich experience of a wise Latina woman he would have known his statements are going to piss off Latinos and women too.-
25.1
The Conservative Republicans just can't let a good chance to dive for the bottom of the pool go by, no matter what their advisors may tell them.
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