Greetings from Vancouver Island, British Columbia, Canada where I am visiting my folks. I’ve been following the Sotomayor confirmation hearing via the blogs when I can, haven’t seen any of it on TV, but what I’ve read on the blogs is pretty much what I expected. She is pulling an Obama flip-flop on her earlier views to get into power. Here is a liberal law professor’s views:
I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts?~~~
Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.
Actually I don’t think there is an either/or here. She is both intellectually and morally unqualified. Here’s Ed Whelan on another flip-flop:
Judge Sotomayor’s exchange with Senator Schumer on foreign and international law (available towards the end of this transcript) is either incomprehensible or disingenuous.
As I have documented, Sotomayor has defended freewheeling resort to foreign and international law while positing an unintelligible distinction between “use” of foreign or international law and “consider[ing] the ideas that are suggested”by international and foreign law. Among other things, she said that Justices Scalia and Thomas, in “extensively criticizing the use of foreign and international law in Supreme Court decisions,” misunderstand that imaginary distinction. She stated that she “share[s] more the ideas of Justice Ginsburg in thinking or in believing that unless American courts are more open to discussing the ideas raised by foreign cases and by international cases that we are going to lose influence in the world.” And she spoke approvingly of recent instances—Roper v. Simmons and Lawrence v. Texas, specifically—in which the Court “looked … to foreign law to help us decide our issues.”
But today Sotomayor seemed to say virtually the opposite.
That was yesterday, and today?
Below (in full) is the exchange this morning between Senator Coburn and Judge Sotomayor on use of foreign law. Is there anyone who thinks that Sotomayor’s comments (especially the ones I italicize) are coherent or consistent with her April speech?
COBURN: You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.
SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law. I…
COBURN: But I accepted that. I said outside of those…
COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?
SOTOMAYOR: My speech and my record on this issue is I’ve never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.
COBURN: So you stand by the — there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?
SOTOMAYOR: Unless the statute requires or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.
COBURN: Well, let me give you one of your quotes. To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their mind to good ideas. Nothing in the American legal system prevents us from considering those ideas.
We don’t want judges to have closed minds just as much as we don’t want judges to consider legislation and foreign law that’s developed through bodies, elected bodies outside of this country, to influence what, either rightly so or wrongly so, against what the elected representatives and Constitution of this country says.
So would you kindly explain the difference that I perceive in both the statement versus the way you just answered?
SOTOMAYOR: There is none. If you look at my speech, you’ll see that repeatedly I pointed out both that the American legal system that structured not to use foreign law. It repeatedly underscored that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or the statutes.
What I pointed out to in that speech is that there’s a public misunderstanding of the word “use.” And what I was talking about, one doesn’t use those things in the sense of coming to a legal conclusion in a case. What judges do — and I cited Justice Ginsberg — is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider.
But that’s just thinking. It’s an academic discussion when you’re talking about — thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a — if — if there’s a citation to foreign law, that’s driving the conclusion.
In my experience, when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.
Judge Sotomayor says “eminent” when she means “imminent,” “providence” instead of “province,” “story of knowledge” instead of “store of knowledge,” and so on. Does the fact that she is a Latina immunize her from attention to that sort of (admittedly not uncommon) foible?
So she flees from her earlier views…but why? There is no way we can stop her from being put on the bench. We just don’t have the votes. So why pull the Obama flip-flop?
Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.
Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president’s and Judge Sotomayor’s (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that’s right.
Sure, it’s unacceptable, but the men and women who were entrusted to vote for the American people will soon stamp approved on her application for SCOTUS. It’s obvious now, if it wasn’t before, Sotomayor is not qualified to be on our most powerful court. Will the Democrats do as Republicans did with Miers?
Not on your life.
That would just prove that their savior was just as unqualified because he chose someone not for their intellectual prowess but purely political reasons.
In short, every prevarication and stumble Sotomayor makes deepens the impression that Obama is not a competent executive. That’s the real danger for Obama in these hearings, and the tough questioning of Jeff Sessions and Lindsey Graham has made it a reality.