Oliver Wendell Holmes, widely regarded as one of the most brilliant jurists of our time, once wrote that “three generations of imbeciles are enough,” before upholding a law allowing forced sterilization of mildly mentally challenged individuals. He also wrote “mental defectives are to live in the world they should pay for the damage they do.”
I share these two chestnuts with you not to undermine Holmes’ place in the pantheon of legal juggernauts, but to demonstrate that even brilliant judges sometimes say stupid things, that, when read out of context, seem irrational. But Holmes was complex, and so, it seems, is Sonia Sotomayor.
The media has worked itself into a frenzy about her background and her ethnicity, her one-off comments about “policy” and race, her “third-woman-first-Hispanic” status referenced as though the Obama administration was playing Minority Bingo. But little has been written about Sotomayor as a jurist.
So let’s take a step back from the hype, and really see what the woman has to say for herself.
First, let’s review her now infamous comments at a Duke Law School panel. “The Court of Appeals is where policy is made… I should never say that because we don’t make law… I’m not promoting it. I’m not advocating it.” Her immediate equivocation was as honest as the initial statement. Judges aren’t supposed to make policy, but the brain trust that makes up our legislature often drafts laws that are so byzantine in grammatical structure, so asinine in purpose, that no one- including the legislature itself- knows what they say. So the job of interpretation falls at the feet of the judiciary, just like it says in Article III of the Constitution. Some judges use “strict construction” to interpret statutes, some use “legislative intent,” and some throw a dart at a board. But the dirty little secret is that law is made on the bench as much, if not more, than it is made in the halls of Congress. You hear that laughter in the background of the clip? Everyone in the room understands what she’s saying. Sotomayor was just telling the truth, a capital offense in a confirmation process.
Next, the oft-quoted “A Latina Judge’s Voice” lecture at UC Berkeley School of Law. Yes, it is true Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” But it was one unfortunate sentence in a 5-page speech about her own experiences as a Puerto Rican-American woman, a judge, and a citizen. She could have chosen a more precise word than “better,” but the sentiment, when read in the context of the entire lecture, is that a diversity of experiences leads to a diversity of opinions and can help inform a reasoned debate. Through clumsily, she was trying to articulate that a diverse nation is better served by a judiciary system that reflects that diversity.
A judge’s statements on her off time, however, aren’t nearly as informative as her opinions. She rejected a First Amendment claim by abortion rights groups on standing, but she found a right to sue the government for the negligent actions of a halfway house used to house parolees. She denied freelancers the right to recover against media outlets that reused their material for online publishing without the plaintiff’s permission, but she also upheld the free speech rights of an off-duty cop to send out anonymous, racist fliers without fear of repercussions from his job. The one case that the media seems to be focusing on involving racially disparate test scores on a firefighters exam, Ricci v. DeStefano, was not actually authored by Sotomayor, but was drafted per curiam, meaning no one on the court wanted to admit to writing it. There is no way of knowing, short of doping one of her clerks, whether or not she was the author, or merely an adherent.
After doing a cursory review, Sotomayor turns out to be pretty much what Souter was- moderate. Any personal liberalism is not betrayed in decisions that trend towards the left as much as the right. Her opinions that have been reviewed by the Supreme Court tend to be agreed with by the four “liberals” on the court, and rejected by the four conservatives. So, if we judge her by the company she keeps, she will be a liberal only in relation to the extremity of the conservatives on the Court.
Ultimately, it was Holmes himself that said “the life of the law has not been logic: it has been experience.” For better or worse, our judges, while trying to maintain a detached, neutral perspective, are not crucibles into which fact and law can be placed, melding into the platonic ideal of an answer. They are human beings. So, would we rather have a an academic automaton who has no concept of how reality functions (a failure that has lead to both the above-mentioned words of Holmes regarding “mental defectives” and the recent school-boy antics of the current Court over the strip search of a 13-year-old girl), or a judge who has lived a full life with a variety of experiences, like the rest of us? She may not be the next Holmes, and she may not be the Liberal Lion I was hoping for, but she’s a competent jurist who at least makes the court slightly more reflective of American society as a whole.