Sotomayor: “Court is where policy is made.”

This remark reveals a philosophy of jurisprudence that is very problematic. The judge’s role, according to Sotomayor, is not merely to apply the law to a given case but to make public policy. Perhaps she didn’t mean to imply that this is the way things should be, but just the way that things are. I expect that we’ll be seeing debate over this remark in the coming days during the confirmation hearing.

12 Responses to Sotomayor: “Court is where policy is made.”

  1. paul May 26, 2009 at 4:10 pm #

    Oh, Denny…

    Did you even watch the whole clip? Even she says it’s not a great idea. But, it’s just the way it is.

    Not to mention, wouldn’t overturning Roe v. Wade essentially be court mandated policy change?

  2. Darius T May 26, 2009 at 4:14 pm #

    Well, considering Roe v. Wade was court mandated policy change to begin with… no, it would be correcting a past mistake. The scary quote of Sotomayor’s is this one: “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”

  3. paul May 26, 2009 at 4:41 pm #

    there are two ways to read that comment Darius. You read it the wrong way.

  4. Ryan K. May 26, 2009 at 7:17 pm #

    Hey Paul what are the two ways to read the statement, and how is what Darius read wrong?

    I find it sad that the Supreme Court has to double for a diversity parade. Not to say only white males should by Supreme Court justices, but when the first criteria is of being of minority status then we have lost our way.

    I would actually like to hear Paul how you would read the quote that Darius provided. Why would the “richness of experience” of a Latina woman be superior that that of any other American. I would personally be more excited to see her identify herself as an American foremost since she is a candidate for Supreme Court of the United States of America.

  5. Brian Krieger May 27, 2009 at 10:39 am #

    I can’t watch the video, so maybe there was a tone or some other mitigating factor, but it seems that the statement is saying that empathy should drive ruling and interpretation? I don’t think I fully get the second way.

    That said, it’s one quote pulled from an interview (right?). Maybe time will reveal that other side of things.

  6. Darius T May 27, 2009 at 11:05 am #

    Did you even watch the whole clip? Even she says it’s not a great idea. But, it’s just the way it is.


    You may be right. I thought she seemed to be giving lip service to the idea that some believe that it shouldn’t make policy… the way they all laugh seems like it is a joke to them. But maybe not…

    I second Ryan and Brian’s question… how do you read that quote differently?

    On a separate but equally disturbing multicult note, I saw an ad yesterday on TV for May as “Asian Pacific American Heritage Month.” Seriously, not only is that annoying to say, but why does every single little minority have to be “celebrated”? As Morgan Freeman said, “I don’t want a black history month. Black history is American history.”

  7. Scott Krzych May 27, 2009 at 12:13 pm #

    On reading the quote two ways, there’s this thing called the “internet” where you can actually find out the context of quotes.

    From Media Matters:

    In fact, when Sotomayor asserted, “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,” she was specifically discussing the importance of judicial diversity in determining race and sex discrimination cases. As Media Matters for America has noted, former Bush Justice Department lawyer John Yoo has similarly stressed that Supreme Court Justice Clarence Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas’ work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

  8. Matthew Staton May 27, 2009 at 1:36 pm #

    This is one of the exact situations folks here were predicting: supreme court nominees that conservatives can’t do much about. I read the article above to say that it could be worse and may be worse if Sotomayor is rejected. There really may not be much to do but state an objection and move on. It is always right to pray for leaders. If she is confirmed then we should all pray that she judges with wisdom.

  9. Darius T May 27, 2009 at 1:40 pm #

    Agreed, Matthew. Perhaps she could be the polar opposite of Souter: start liberal and turn conservative. Plenty of people have had just such a transformation, why not a judge?

  10. Darius T May 27, 2009 at 1:43 pm #

    Oh, I guess that was primarily the point of the article. 🙂

    From what I’ve seen of her decisions, only the firefighter one strikes me as completely immoral or stupid (granted, I’ve only seen a handful so far). And she’s been good at applying the law when it comes to abortion, rather than making it.

  11. Matt Svoboda May 27, 2009 at 7:12 pm #

    One more reason why Obama was a bad idea, especially for Evangelicals..

    (notice I did not put Evangelical in parenthesis)


  12. Brian Krieger May 28, 2009 at 10:17 am #


    The greater context does shed better light on the quote. I’m not comforted by the greater context, though. It’s still simply swinging the pendulum completely in the other direction. The view she (properly) derides is based on one thinking they were superior over the other. Her view is based on exactly the same thing, only the opposite side. Judge Sotomayor’s words:

    Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases… I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

    I agree with the viewpoint with which it sounded like she started. That being that diversity brings balanced decision making (or so it seemed to me). But then goes wrong, I think, by individualizing it and asserting superiority. I would also agree that there is not a universally agreed “wise decision”, but there is a universal “wise decision”.

    I’m also not quite sure if I agree with the resignation to experiential, physiological or cultural bias or the resignation to judges making policy. Isn’t that at the root of what she is speaking against? The white male justices were resigned to a certain viewpoint, thus, just go with it. But, as with the above quote, I can see the angle she is taking. I think.

    Again, though, all of that simply to come back to the fact that time will flesh out more information. And in the end, we pray, regardless of it being someone who is perfectly in line with our views or not.

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