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Epee, on Jennifer Rubin:

The views expressed by Sotomayor are basically legal realism or, as one of my law professors called it, “vulgar legal realism.” The idea is that the law is indeterminate and judges may be influenced by something as petty as what they had for breakfast. To Sotomayor, the decisions she reaches will be affected by her life experiences, which include those related to her being an Hispanic and a woman. She and other legal realists see nothing wrong with that, and believe that this is a more accurate view of how decisions are made than pretending that there’s a fixed law which all impartial judges will find.

As a result, her “32 words” are of a piece with her comments that the Court of Appeals is where policy is made. She figures out what she wants the decision to be, and then finds a basis for it, influenced by her life experiences. The same thinking underlies Obama’s call for “empathy” in decision-making, which is just another way of avoiding things like statutes and the Constitution. Or one could take the approach of Justice William Douglas in his concurring opinion in Roe v. Wade, where he couldn’t find support in the Constitution, so he claimed that it was there in the “penumbras.” The legal realist judge says that the law is whatever she says it is, the judicial version of Barack Obama’s “I won.”



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