Commentary Magazine


Re: 32

Supporters of the Sotomayor nomination are getting nervous about those 32 words. Lanny Davis declares, “She misspoke.” But did she? And how would Davis know that?

The difficulty with implementing all the helpful suggestions (“Don’t just clarify the statement, take it back.”) is that this may really represent her deeply held views and not be an isolated utterance. It just might be that she doesn’t think much of the notion that judges can or should be impartial and instead thinks it’s a good thing to bring some distinctive Latina jurisprudence to the bench. ( Don’t get me wrong — this is nonsense in my view, but I take her words crafted for a speech at a prominent law school as representative of her thinking, not some off-the-cuff slip.)

John Eastman points to other troubling statements, and the Wall Street Journal suggests there is more of this sort of thing out there:

Judge Sonia Sotomayor receives an honorary degree at Northeastern University in 2007. In law-school lectures, she has argued that the law reflects the experiences of those applying it.

“The law that lawyers practice and judges declare is not a definitive, capital ‘L’ law that many would like to think exists,” Judge Sotomayor said in her 1996 lecture at Suffolk University Law School, summarizing Judge Frank’s work.

Confidence in the legal system falters, she said, because the public “expects the law to be static and predictable” when in fact courts and lawyers are “constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions.”

The fact that the White House hasn’t swooped in with the repair crew indicates either they don’t know what she thinks or they don’t know how to fix it without upsetting the very same leftist interest groups and civil rights groups that think this sort of thing is just swell. It is hard to believe the White House didn’t see this coming and didn’t have a game plan, but then we’ve seen their vetting process before. And, of course, in a White House and Justice Department populated by those who support the cottage industry of racial grievances and preferences this simply might not have seemed all that exceptional.

Once again, we see that Supreme Court confirmations are always interesting and rarely predictable.