Judge Sotomayor and Democratic Senators Use the “Record” as Slight-of-Hand

July 14, 2009

The ultimate example of Sotomayor’s chicanery in these hearings is that she keeps pointing to her “record.”  Senator Schumer has chimed in by insisting that she hasn’t “made” any law in her entire record. 

Her “record” of case decisions thus far, of course, is the result of her being subject to the review of a higher court (and also of her aspirations to become a Supreme Court justice). When she is in charge as a Supreme Court justice, she will get to set the course with no oversight and no higher position to which she can aspire. That’s when we’ll see her true philosophy put into action. And that is why she’s trying to ignore her speeches and point to her “judicial record”, which has little bearing on what she’ll do when she’s cut loose from the shackles of a higher court and future confirmation hearings. Her speeches reveal the philosophy she will actually employ.

That philosophy is of the “critical legal studies” school of thought, which ultimately claims that all judicial decisions are biased and cannot help but be so, and that judges therefore should make the law whatever they think is “just” (though in my opinion they have no viable framework for determining what justice is, so they just do what they want). Judge Sotomayor is unlikely to show much restraint as a Supreme Court justice, notwithstanding her alleged “record” as a subordinate judge.

When someone has to say one thing in one context where he/she is bound by rules and oversight, and then that person says something different in a context where he/she is free to say whatever he/she wants, which do we think is more honest?

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