The Sotomayor Nomination

Yesterday, I came across this in an opinion piece by Ilya Shapiro posted on cnn.com, criticizing President Obama's nomination of Judge Sonia Sotomayor to the Supreme Court:

[I]n over 10 years on the Second Circuit, she has not issued any important decisions or made a name for herself as a legal scholar or particularly respected jurist. In picking a case to highlight during his introduction of the nominee, President Obama had to go back to her days as a trial judge and a technical ruling that ended the 1994-95 baseball strike.

Moreover, Sotomayor has a mixed reputation among lawyers who have practiced before her, some questioning her abilities as a judicial craftsman, others her erratic temperament, according to a piece by Jeffrey Rosen in The New Republic, which itself has come in for criticism.

Such anecdotal criticism is to be taken with a grain of salt -- while Justice Antonin Scalia's bench-side manner is more vinegar than honey, even his detractors recognize his brilliance -- but it does need to be investigated. So, too, do certain statements she made in presentations at Berkeley and Duke, respectively, the former arguing that a Latina necessarily sees the law differently than a white man, the latter suggesting that, at least to some degree, judges make rather than interpret law.

Am I correct in reading this to mean that Shapiro's primary beef with Sotomayor is her lack of "brilliance"? I mean, he shrugs off criticisms of her demeanor (apparently on the grounds that any failing of Antonin Scalia's must not be a failing at all), but huffs and puffs that she is no "legal scholar," "respected jurist," or "judicial craftsman." Seriously, how important is brilliance?

Here's a lesson from the real world and the practice of law: past a certain point, additional intelligence provides only short-term advantages. Being smart means you'll pick up the concepts more quickly than others. It means you might be able to come up with cleverer or more intricate arguments, more quickly. But over the long haul, those benefits never trump experience in the trenches. Yes, the Supreme Court is a very important post, and an impressive intellect is an asset; but an astounding intellect is unnecessary.

Secondly, there seems to be something hypocritical (or at least dissembling) about Shapiro's admonition that Sotomayor "has not issued any important decisions or made a name for herself as a legal scholar or particularly respected jurist." To me, this reads as follows: "Judge Sotomayor has failed to leave a satisfactory smoking gun evidencing her liberal activism, which makes my job difficult, since I'm supposed to call her a liberal judicial activist. Therefore, I will paint her failure to stake out such liberal positions as evidence of her intellectual lethargy." In other words, had Sotomayor staked out any clever, novel, or interesting legal positions, Shapiro would be criticizing her for having taken those positions, instead of criticizing her, as he does here, for not having taken them.

Thirdly, Shapiro criticizes Sotomayor for commenting that judges make rather than interpret the law. If you read Shapiro's bio, you will see that he is a lawyer with an impressive-sounding resumé. This is surprising, because he is apparently quite a dim bulb himself. I attended a state law school, where I was taught by outspoken liberals and outspoken conservatives. Not one of them, regardless of their political persuasion, would have denied that in certain circumstances, a judge has the responsibility to make the law. "Interpreting, not making, the law," is something the public likes to hear about its judges, but it has never been the whole story.

Imagine this scenario: a criminal defendant has been tried in state court and found guilty of first degree murder. The jury deliberates, and votes 11-1 to impose the death penalty. A state statute provides that an 11-1 vote is all that is necessary to impose the death penalty. The defendant objects, saying that the state statute violates the Due Process clause of the Fourteenth Amendment, which ought to be interpreted to require unanimity in order to impose the death penalty. All the Due Process clause says is "No State shall... deprive any person of life, liberty, or property, without due process of law." So which is it? Does the Due Process clause require unanimity or is 11-1 good enough? Either answer is plausible, but you can't support either one just from reading the Due Process clause. Say yes or say no, but your decision is not extrapolated from the meaning of the phrase "due process"; your decision gives meaning to the phrase "due process."

The take-away point is this: when the drafters of the Constitution or the legislation punt, the judiciary has to pick up the ball.

Lastly (for now), Shapiro criticizes Sotomayor for remarking that a Latina and a white man necessarily view the law differently. I actually can join Shapiro in being a little riled by this comment. Obviously she's playing to crude racial stereotypes here. Behind it is something like the ethnic imaginings typified in Jennifer Lopez romantic comedies: Latinas are all sassy hotel maids, and white men are all running for the U.S. Senate. You might as well say that black men and Sicilians necessarily have different views on the law—but then how do you explain Justices Thomas and Scalia? These are oversimplifications that should make us all blush, and frankly they're offensive.

On the other hand, by adding a little nuance, I don't think Sotomayor is very far from the truth. I think it's true to say that there are a lot of factors that influence one's view of the law (upbringing, religion, socioeconomic status, etc.), and many of those factors, statistically speaking, break along ethnic, racial, and gender lines. Because I am charitably-inclined, I'll spot her the benefit of the doubt, and assume that Sotomayor's comment was just ill-advised shorthand for the more nuanced version I've put forth.