What Would a Good Conversation About Picking Judges Look Like?: Reflections Inspired by the State Judicial Independence Conference

Earlier this week, I was privileged to participate as a panelist at an important and inspiring conference held here at Seattle University.  Before a standing room audience of over 400 people, thirty judges, professors, lawyers, journalists, and politicians used a variety of formats to poke and prod each other into a sophisticated and nuanced discussion of the threats to judicial integrity and public confidence in the judiciary posed by the rise of big-money state judicial election campaigns.  The conference was inspired by and keynoted by retired Supreme Court Justice Sandra Day O’Connor, who has made the elimination of elected state judiciaries one of the central causes of her retirement years.

A Wise Latina and the Commonality of Common Sense

Last week I authored a post about Judge Sonia Sotomayor, identity and judicial impartiality.   An essay by Adam Liptak in yesterday’s New York Times makes me want to revisit the topic, albeit briefly.

Liptak describes a Supreme Court decision of the past term, Ashcroft v. Iqbal.   As Liptak explains, the decision makes a substantial change in federal pleading practice, one which is likely to have significant repercussions for some time to come.

Liptak includes an excerpt from the majority opinion from Justice Kennedy:

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

The reliance on ”common sense” is particularly striking to me, for such a standard is plainly subjective rather than objective. 

Sotomayor, Identity and the Art of Judging

It’s been many months now that we’ve sat through debate/discussion about whether Judge Sonia Sotomayor’s identity would (or does)  influence her decision-making as a judge.  (With a dazzling array of sources to link to, I choose only today’s NYT account of yesterday’s hearings.)

It’s quite clear that the “correct” answer to the identity question is that it would not influence her.  Judge Sotomayor was consistent in saying that she applied the law neutrally and her advocates pointed repeatedly to her extensive judicial record.  At the same time, her detractors on the committee and elsewhere pointed to some of her out-of-court remarks that suggested that identity matters — particularly the now-infamous “wise Latina woman” line from her speech, which suggested that a person with Judge Sotomayor’s background might bring something valuable to the judicial process that a white male judge would not add.

Catholicity of Sotomayor Comment

So far, the most controversial revelation regarding the nomination of Judge Sonia Sotomayor is her comment in a 2001 speech at Berkeley which included the following statement:

“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.”

Although the statement may raise legitimate political and jurisprudential questions related to her confirmation, it could be construed as consistent with the Catholic principle of the preferential option for the poor.  Both Sotomayor’s statement and the preferential option imply that privilege can result in lacunae requiring a “view from below” in order to identify injustice.  The preferential option as a principle of Catholic social thought has its origin in the work of liberation theologians such as Gustavo Gutierrez.  In a 1980 sermon, Pope John Paul II articulated it as…

“a call to a special solidarity with the humble and the weak, those who are suffering and weeping, who are humiliated and left on the fringes of life and society, in order to help them to realize ever more fully their own dignity as human persons and children of God.”

Cross posted at the Mirror of Justice Blog.

Sonia Sotomayor & the First Amendment

In the torrent of news about President Obama’s selection for the U.S. Supreme Court, much will be read and heard on Judge Sotomayor’s perspective on constitutional interpretation (and whether or not it is too “activist”); on equal protection and affirmative action (and whether or not her disposition of the civil rights claims of white firefighters in the Ricci case was too dismissive); and even on baseball (and whether or not she fairly “saved” the sport in New York).  But fewer will comment on Judge Sotomayor’s views on the first of our liberties – the guarantees of speech, press, and religion.

There may be a very good reason for this.  Her judicial record as both a district and appellate court judge tells us relatively little that is truly definitive about her perspectives on expressive rights.  And that may not be comforting to those who yearn for certainty in a Court that has been narrowly divided in many First Amendment cases.

A Mildly Surprising Choice

For several years, the majority of Supreme Court watchers have listed Sonia Sotomayor as the leading candidate to join the Court if and when the Democrats regained the White House.  Along with a few others, I had been skeptical.  In a list published last summer, I ranked Judge Sotomayor as the seventh most likely candidate to join the Court during an Obama Administration (while ranking two of the ultimate finalists for the job, Diane Wood and Elena Kagan, first and second).  When Justice Souter announced his retirement, I moved Judge Sotomayor up my personal list but still told all who would listen that I thought Judge Wood the most likely pick.

In speculating that Judge Sotomayor wouldn’t get the call, I wasn’t just being contrarian.  As I analyzed the tea leaves, Judge Sotomayor had the potential to rile up conservatives and provoke a nomination fight without exciting the legal left.  Moreover, while I believed that she would likely get an interview, I was skeptical that she would be the one among the likely finalists to click with President Obama and clinch the nomination.

So, today there is a mild amount of egg on my face.  And I ask myself:  where did I go wrong?  What did I miss in my analysis?