Wednesday, May 27, 2009

In (Further) Praise of Sonia Sotomayor

Judge Sonia Sotomayor is plainly "qualified" to sit on the Supreme Court. Her academic record is exemplary. Her experiences as a litigator and as a trial judge are also worth mentioning: with the exception of Souter, no member of the Supreme Court has experience in the litigation trenches. Without personal experience with the pretrial and trial process, it is very hard to understand how litigation works. It is important for a Supreme Court Justice to understand how litigation works.

Some observers have suggested that Sotomayor's consciousness of her own life story disqualifies her from joining the Supreme Court. The suggestion is ridiculous. Today no serious legal scholar or honest judge believes that law is a system of rules and principles that can be administered "mechanically," uninfluenced by personal judgment. Every judge has personal experiences that influence the way the judge reads the law. In this respect, Sotomayor is no different from any other judge. Moreover, Sotomayor's personal experience with relative poverty is a perspective the Court needs: it may offset to some degree the influence of the greater personal familiarity that almost all other members of the Court (except for Justice Clarence Thomas) have with wealth and economic privilege.

The "discovery" that law cannot be an autonomous system that is entirely independent of subjective judicial judgment of course raises a theoretical question (an important one) about the meaning and nature of the rule of law. However, until that broad theoretical question is settled, there is every reason to believe that Judge Sotomayor will act in the fashion that our society thinks judges ought to act: she pays close attention to statutes, precedents, constitutional language, the arguments of advocates, etc., when she wrestles with the legal puzzles that confront her; Judge Sotomayor does exactly the sorts of things we expect and want judges to do.

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