Anatomy Of A Sotomayor SCOTUS Whisper Campaign

I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

I have known Sonia Sotomayor for more than 20 years. She cares intensely about the law, and takes her responsibilities as a judge very seriously. Even when we’ve disagreed, I have found her collegial, respectful of opposing views, and very easy to get along with.

Judge Sotomayor told students at Duke University School of Law that law students like to clerk on the circuit courts because “policy” is made there. Sen. Hatch equated “policy” with “politics,” and accused Judge Sotomayor of the sin of “judicial activism.” But she used “policy” in a completely different way. When a case is not governed by precedent, and when genuine doubt exists about the meaning of the governing text, policy arguments are routinely used to decide what the ambiguous text means. …

I have reviewed Judge Sotomayor’s judicial record, and it is undoubtedly well within the judicial mainstream. Mainstream judging consists of four elements:

First, a judge must determine whether binding precedent controls the outcome of a case. Judge Sotomayor is meticulous is seeking to follow precedent.

Second, if the case is not controlled by precedent, a judge must determine whether the governing text provides an unambiguous, plain-meaning command. Judge Sotomayor is respectful of text, and keenly aware of her duty to follow unambiguous textual commands.

Third, if neither precedent nor unambiguous text dictates an outcome, a judge should seek to select the textual meaning intended by the drafters. Judge Sotomayor consistently seeks to read ambiguous text to advance legislative and constitutional purpose.

Finally, when neither precedent, nor text, nor legislative purpose yields a clear answer, Judge Sotomayor weighs the pragmatic impact of adopting one reading as opposed to another, and selects the “best” reading of the text.

Sonia Sotomayor is entitled to be judged on the merits against a very strong pool of prospective nominees free from the conservative baggage that is designed to sink her candidacy before it gets a fair consideration.