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Full Context #3: Sotomayor's "Returning Majesty to the Law and Politics"
May 30, 2009 9:45 AM
Arguing that she views the law as a vehicle for her personal feelings, Judge Sonia Sotomayor's opponents have pointed to a 2001 speech she delivered in California, which the White House yesterday said she'd articulate differently today.
They've pointed to a videotaped 2005 appearance at Duke University, she said the "court of appeals is where policy is made."
And now they're looking at a 1996 lecture at Suffolk University Law School, which evolved into an article contributed to the Suffolk University Law Review, entitled "Returning Majesty to the Law and Politics: A Modern Approach."
She and her co-author wrote that "change -- sometimes radical change -- can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive civilized but always evolving society."
You can read the entire article HERE.
Sotomayor in the lecture and article discussed Judge Jerome Frank, who in 1930 argued "Law and the Modern Mind" that the law often reflected the individual characteristics of the judges applying it. Frank was one of the innovators of a school of legal thought call Legal Realism, which is at odds with those such as Justice Antonin Scalia who consider themselves originalists -- applying the Constitution today as those who wrote it in the 1700s intended it.
"The law that lawyers practice and judges declare is not a definitive, capital 'L' law that many would like to think exists," Sotomayor wrote.
She quoted Frank at length from Law and the Modern Mind (1930): "Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable," Frank wrote. "Much of the uncertainty of law is not an unfortunate accident: it is of immense social value."
Sotomayor seemed to repeat some of the same arguments from Legal Realism, writing that "lawyers do themselves a disservice by acceding to the public myth that law can be certain and stable."
Discussing reasons as to why the law sometimes seems unpredictable, Sotomayor also wrote that "a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction."
In an interview with the Wall Street Journal, University of Chicago law professor Brian Leiter, said Sotomayor was just speaking the truth.
"The idea that appellate judges never make law, and only apply the law as written, is a fiction, as every American lawyer knows," Leiter said. "The American legal realists made the case famously in the 1920s and 1930s."
But not surprisingly, Sotomayor's 1996 article has started to attract conservative criticisms.
"No one denies that society goes through certain changes that may necessitate alterations in law," wrote Deborah O'Malley at the Heritage Foundation blog, "but the Founders gave us a legislative branch to address such needs."
"This is astonishing stuff," editorialized the Washington Times. "It says the public itself should not be able to count on the meaning of laws remaining stable from day to day - even though the people, those governed by the law, have never given their assent, through representative elections, for the laws to be changed. This theory is just a high-falutin' way for Ms. Sotomayor to argue, as she did in the infamous videotape, that a role of a judge is to make policy…
"In place of laws readily understood and relied upon by the general public, Judge Sotomayor would have 'judges declare' the meaning of the law by 'adapting it to the realities of ever-changing social, industrial and political conditions.' That is what elected legislators are supposed to do. Ms. Sotomayor's 1996 essay provides ample proof that she believes, as she said on the videotape, that appeals court judges should make policy."
Not all conservatives, it should be noted, think that videotape is so damning.
Walter Olson of the Manhattan Institute writes "conservatives keep publicizing a YouTube clip where she confides to a panel-discussion audience that appeals courts are 'where policy is made.' Sorry, but that's a standard observation among legal commentators these days—by no means limited to liberals…"
After all, as Jason Linkins points out, Justice Scalia in 2002 wrote in his ruling in Republican Party of Minnesota v. White, that "state-court judges possess the power to 'make' common law" as well as that "the judges of inferior courts often 'make law,' since the precedent of the highest court does not cover every situation, and not every case is reviewed."
- jpt
May 30, 2009 | Permalink | Share | User Comments (22)
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OK.. if no one wants her to be confirmed.. she can be the CyberCzar...
Posted by: DontGet818OnMeNow | May 31, 2009 2:47:51 PM
A conservative court has shut its doors on so many people, people are giving up hope.
Sotomayor can walk in our shoes, can you Tapper?
Posted by: Davis | May 30, 2009 9:12:07 PM
Same crowd, same BS
Posted by: Thinking | May 30, 2009 7:15:44 PM
why am I not surprised that Obama wants an appointee who will support "majesty"! Barak idealized the "Camelot" days of Jack but seems to want further royal treatment. The use of symbols. His Grecian podiums. His "light will shine upon you" sermons. Oddly, he disrepected real royalty (the Queen of England) but bowed to Saudi royalty but, I guess, he figures he wasn't quite up to snuff yet. He obviously respects Royalty without parliamentary control, hence his choice between disrespect for the QoE but bowing supplicantly to the Sauds.
Posted by: Ed | May 30, 2009 6:33:11 PM
BSA:"Some one tell Jake, that Truman was a congressman not a senator and was not able to vote on appointees."
I'm not sure why this came up, but reality is that Harry S.Truman was elected to the US Senate in 1934 and served until he left for the Vice Presidency in 1945. I thought it was pretty widely accepted that part of Truman's success was founded on his knowing the ropes of the Senate very well.
Posted by: jhw539 | May 30, 2009 6:21:02 PM
Some one tell Jake, that Truman was a congressman not a senator and was not able to vote on appointees.
Posted by: BSA | May 30, 2009 4:51:53 PM
This is just pathetic - she's been on the bench for 17 years and authored hundreds of opinions. Why can't they find problems with HOW SHE HAS ACTUALLY JUDGED, rather than her off hours ruminations on the esoterics of the profession?
She's leans left - if the Republicans were even marginally competent that is what they would be hitting her on. Instead they're playing childish slander games to gin up their rapidly shrinking base. Just sad - we need a conservative party back. Badly.
Posted by: jhw539 | May 30, 2009 4:37:58 PM
Oh good grief. Scalia makes the same arguments himself. This is getting realy stupid.
Posted by: angry democrat | May 30, 2009 4:16:18 PM
Just like the left conveniently forgets about the award winning movie made about the assasination of former President Bush
Skittles
I saw that movie, interesting, doesn't make my top 100 favs tho'
sorta like the 'right' forgetting the 'swiftboat' adds against Kerry, and the outrageous attack adds against Max Cleland
Posted by: YO | May 30, 2009 2:32:56 PM
just amazing how everyone suddenly became a lawyer.... LOL
Posted by: TJ | May 30, 2009 2:11:17 PM
False. Judges to not make or change laws. They interpret existing laws.
Posted by: Concerned in OH
so were all the additions to the Bill of Rights,
'changes' or 'interpretations' ?
Posted by: Yo | May 30, 2009 2:06:37 PM
This Hispanic woman may have wanted to take back her remarks as Obama and the extremeist left wing want you to believe, She may even say she wished she hadn't said them as the leftist media wants to point out...BUT SHE DID, and she MEANT them..then and now..SHE IS RACIST and MUST withdrawl
Posted by: LMAO | May 30, 2009 12:58:14 PM
Just like the left conveniently forgets about the award winning movie made about the assasination of former President Bush in its outrage over "the ad", they also forgot this:
"In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. 'They also identified Miguel Estrada as especially dangerous,' the staffer added, 'because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.'
"It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench."
Did you catch the wording? Dangerous.
Posted by: Skittles | May 30, 2009 12:48:13 PM
All these revelations are just showing how intellectual and sophisticated Judge Sonia is, really
Posted by: Bill | May 30, 2009 12:18:22 PM
"In an interview with the Wall Street Journal, University of Chicago law professor Brian Leiter, said Sotomayor was just speaking the truth." jpt
****************************
Sandra Day O'Connor in her tribute to retiring Justice Marshall:
"Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice.
At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth."
Posted by: Padma | May 30, 2009 11:40:57 AM
Ban on lobbyist? Ha! "Just words"
Posted by: jennifert7 | May 30, 2009 11:39:36 AM
"No one denies that society goes through certain changes that may necessitate alterations in law," wrote Deborah O'Malley at the Heritage Foundation blog, "but the Founders gave us a legislative branch to address such needs."
=========================================
And the Founders gave us a judiciary branch to address such needs, as well.
Recognition that changes in societal attitudes necessitate changes in law is usually done in courts, usually appellate court judges.
Posted by: Willem van Oranje | May 30, 2009 11:34:15 AM
It could of been worse. Obama really wanted JESSE JACKSON and AL SHARPTON appointed.
Posted by: tager | May 30, 2009 11:03:40 AM
"We concluded this was necessary under the unique circumstances of the stimulus program..."
Scary stuff indeed. How far will they go in shutting down dissent. I thought dissent was patriotic. New leadership, now one needs to shut up and pay their taxes to be considered patriotic.
The sad thing about Sotomayor? She's probably the least objectionable of the judges Obama is going to appoint in the coming three years.
Posted by: Skittles | May 30, 2009 11:01:11 AM
Maybe if the MEDIA digs enough they might find out that Obama found another TAX CHEATER. Maybe if the MEDIA did their job instead of taking Obama's lying words for FACT
Posted by: whoops | May 30, 2009 10:59:11 AM
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