Posted by: Randy Allgaier | May 2, 2009

Message to the President: Judge Sotomayor should be Justice Sotomayor

I realize that Justice Souter is still on the bench so I feel like this article is a little like saying “The King is dead, long live the King” while the aforementioned King is still on the throne, but a Supreme Court appointment is always important so it isn’t completely irreverent to weigh in on this issue now.

Before making the case for Sonia Sotomayor, I want to ruminate a bit about Justice Souter. Justice David H. Souter – an appointment by George H.W. Bush has clearly been a disappointment for conservatives because he isn’t an ideologue.

Souter has been a complete enigma to court observers and fellow judges alike. He was nominated by a Republican president but after the first couple of terms turned out to be one of the more liberal voices on the Rehnquist Court and the Roberts Court. He told the committee that he was opposed to using original intent as a method of constitutional jurisprudence (Grazia 1997).

Souter has described himself as an “interpretationist,” who embraces a strict construction of the Constitution’s language but reads its words “in light of contemporary conditions, and is not bound by [the framers’] original meaning (Yarbrough 2005).” I take this to mean that Souter agrees with the way that the framers’ built the Constitution but that one had to take into account present factors and that the framers’ could not have foreseen some of the things that would challenge this country in the future. Imagine- the Constitution as a living document

Before the Senate hearings, Souter was described as being impersonal and being out of touch with the problems of the average American. In his opening statement he addressed these concerns to try and dispel this theory. It is a very telling quote and typifies his personality and ideology; he says “[W]hatever court we are in, whatever we are doing, whether we are on a trial court or an appellate court, at the end of our task some human being is going to be affected. Some human life is going to be changed in some way (Yarbrough 2005).” This gives a very significant look into Souter’s predilection for individual rights.

During the confirmation hearings Senator Strom Thurmond was the first to question the nominee. He wondered what Souter thought about the senator’s major Warren Court thorn, Miranda v. Arizona. It would be a mistake, the nominee replied, for any court “to be unwilling ever to reexamine the wisdom of” its decisions. But he also insisted that the Court should never be swayed “by the politics of the moment (Yarbrough 2005). He was also described by friends as one hardly to yield to public pressure, “the kind of guy who could take it; he thought the law trumped public outcry (Grazia 1997).” He also described himself as undogmatic and middle-of-the-road in judicial temperament and frustrated liberals and conservatives alike by refusing to endorse a traditional conservative philosophy (Holland 2004).

Souter also holds a commitment to an essentially common law jurisprudence and its emphasis on stare decisis (Yarbrough 2005). The force of precedent is also a major part of common law tradition. And whatever Souter’s personal political preferences, the civil liberties precedents he confronted on the Supreme Court were essentially the expansive rulings of the Warren and Burger eras (Yarbrough 2005). Unlike some others on the Court, Souter has been unwilling to tear down existing precedents without significant justification

Justice Souter is a thoughtful justice unmoved by political bias and who understood the framer’s original intent was to ensure that the Constitution is a living document that needs to be true to the intent of the law within the reality of a world that the framer’s could not have imagined.

Justice Souter will be missed; but now my case for Judge Sotomayor.

President Obama has expressed an interest in appointing a justice who has empathy for the people of this nation that are often victims of a judicial system, those without a voice or an advocate. The President said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.”

Judge Sotomayor is an exact match for President Obama’s criteria. Judge Sotomayor grew up in a housing project in the South Bronx. She was diagnosed with diabetes at age 8. Her father, a tool-and-die worker with a third-grade education, died the following year. Her mother, a nurse, raised Sotomayor and her younger brother, who is now a doctor, on a modest salary.

Urged by a high school friend to attend an Ivy League college, Judge Sotomayor enrolled at Princeton University, finding it a “very foreign experience for someone from the South Bronx.” She refers to her years there as “the single most growing event of my life” and succeeded in graduating summa cum laude in 1976. She went on to Yale Law School where she was the editor of the law journal and received her J.D. degree in 1979. Judge Sotomayor began her career as an assistant district attorney, working in the New York County District Attorney’s Office from 1979 – 1984 with Robert Morgenthau.

Already, Rep. Anthony Weiner (D-Manhattan) on Friday wrote Obama to recommend her and Sen. Charles Schumer (D-N.Y.), who declined to state his top choice, said she meets his criteria of excellence, political moderation and diversity.

“She is considered one of the brightest judges on the court,” said Jamal Green, a Columbia law professor who clerked with another 2nd Circuit judge. But he said she also is one of the circuit’s most liberal judges.

During her nearly two decades as a judge – six as a district judge and 11 as an appellate judge – she has had some high-profile roles.

She ruled for the special prosecutor in a Watergate case, against team owners in a case that ended the 1994 baseball strike and upheld a police prison sentence in the Abner Louima brutality case.

More recently, in a controversial case, she voted against hearing an appeal in a reverse discrimination lawsuit brought by white firefighters. The Supreme Court recently heard arguments in that case.

But Judge Sotomayor’s best credential is that the right wing doesn’t like her and they don’t like her for the very reasons I want to see her on the Supreme Court. In a memo from a conservative likely to work on the coming judicial nomination battle circulating on the right, targets three likely Obama nominees: Judge Sonia Sotomayor, Judge Diane Wood, and Solicitor General Elena Kagan.

In regard to Judge Sotomayor, the memo states:

Judge Sotomayor’s personal views may cloud her jurisprudence. As Judge Sotomayor explained in a 2002 speech at Berkeley, she believes it is appropriate for a judge to consider their “experiences as women and people of color” in their decision making, which she believes should “affect our decisions.”

Well Mr. Conservative Memo Writer. You just gave me one of the very best reasons I have to support Judge Sotomayor. Considering his judicial philosophy I think that Justice Souter would agree.


  1. Do you believe your views are more important than this Mr.Conservative Memo Writer? You expect people to respect your view while you shut down another? That is ignorance at it’s best.

  2. Did I shut that person down or just give an opinion? I think maybe you should look at who is trying to shut down whom with your idiotic remark.

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