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Is Judge Sotomayor a "Closet Sovereigntist"?

At Opinio Juris, Julian Ku has a brief but interesting post looking at some of Judge Sotomayor's opinions involving the application of international law.

Franklin Drackman:
Nah, She likes guys...
5.28.2009 9:47am
http://volokh.com/?exclude=davidb :
Thread winner on the first post. Well done.
5.28.2009 10:12am
vepxistqaosani (mail) (www):
A bit off-topic, but I would like to see the Conspiracy's take on this (from the NY Times article):


As she was nominated on Tuesday, Judge Sotomayor did not retreat from her view that judges ought to look at the impact of their rulings. "I strive never to forget the real-world consequences of my decisions on individuals, businesses and government," she said.


As a layman, I have always assumed that judges should take more a "fiat iustitia, ruat caelum" approach to the law, and that attention to "real-world consequences" is the proper task of legislators.

And, yes, I'm aware that the abstract notion of justice and the real world of laws are often in conflict -- but that's why legislatures are constantly creating more laws.
5.28.2009 12:28pm
J. Aldridge:
"I strive never to forget the real-world consequences of my decisions on individuals, businesses and government," she said.

Nice to know consequences prescribed by law is dependent on what a judge thinks is proper.
5.28.2009 1:16pm
Suzy (mail):
"Nice to know consequences prescribed by law is dependent on what a judge thinks is proper."

How could you know anything about what a judge does and fail to know this? What do you suppose happens when they sentence people, for example? What do you suppose happens when they think about how one interpretation of an issue will fit with and affect other issues? This is part and parcel of what judges do and are supposed to do, and thankfully this woman has the sense to be concerned about it.
5.28.2009 1:27pm
J. Aldridge:
Well, say a illegal alien is arrested for a serious crime and the law requires mandatory deportation, but the judge thinks deportation would "bring great hardship" to his so-called US born children and allows him to remain.

Later, he guns down a police officer.
5.28.2009 2:09pm
Cityduck (mail):
We can all make stuff up. But, what's the point?

Every Judge I've met or read talks about how they keep in mind the consequences of their decision. That is part and parcel of the job. Alito put it this way during his confirmation hearings:


Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
5.28.2009 2:16pm
J. Aldridge:
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

Right. But when they do bend the law, or make up law to achieve some result, they no longer are judges.
5.28.2009 2:25pm
RPT (mail):
Clinically speaking, people who lack empathy are often narcissists, psychopaths or suffer from other personality disorders. Is that what you want, J Aldridge?
5.28.2009 2:35pm
Steve:
Let's just assume that she means she would ignore mandatory and clear legal requirements in order to avoid imposing hardship on defendants, because that of course is the most reasonable interpretation of what she said.

Here's a suggestion: rather than picking through speeches in search of a comment that can be construed to suggest she would routinely ignore the law in favor of a sympathetic defendant, maybe find an example of a case where she has actually done so? If she's such a rogue judge with no conception of what it means to decide cases impartially, surely in 17 years on the bench we can find a few examples.
5.28.2009 2:48pm
CJColucci:
Steve:
That suggestion makes too much sense. You're wasting your time.
5.28.2009 3:13pm
Franklin Drackman:
I don't care what her judicial philosophy is... Souter always reminded me of the Post Office clerk who shoots up the place after a nondescript 25 yr career...And he's still got a month to go...
5.28.2009 3:16pm
NaG (mail):
I would think that it is difficult to tell what kind of Justice a federal circuit judge would make simply because a federal circuit judge is bound by Supreme Court precedent, while a Justice gets to make that precedent.

This comes to mind in the wake of Prof. Barnett's post earlier in the week about how Judges Posner and Easterbrook were grilling lawyers over whether the 2d Amendment should be incorporated against the states. At this point, we have one SCOTUS decision holding that the Bill of Rights is not incorporated against the states, and then we have a series of later cases holding that particular amendments (1st, 4th, 5th, 6th, 7th, 8th) are so incorporated. But we do not have a pronouncement from SCOTUS that the 2d Amendment is incorporated. Although I would think that the vast majority of federal circuit court judges would think that yes, the 2d Amendment will be incorporated because there's no reason to treat it differently from the other amendments, the fact is that precedent is precedent, and a circuit court is not allowed to guess whether SCOTUS will overturn a given ruling. The proper result is for the circuit court to apply the existing precedent and then hand it up to the Supremes to do with as they will.

So, there are many decisions that a circuit judge will make that follow Supreme Court precedent, but may not reflect what that judge would do if they could make their own precedent. A law school professor or a practitioner would be much freer to make their true stances known. And perhaps that is why federal circuit judges have been the popular choice for nomination to SCOTUS: their jurisprudence is difficult to ascertain unless they really make a point out of spelling it out (like Judge Posner has).
5.28.2009 3:28pm
PC:
If she's such a rogue judge with no conception of what it means to decide cases impartially, surely in 17 years on the bench we can find a few examples.

She has been carefully biding her time, waiting for her appointment to SCOTUS. Just like the far left, crypto-Muslim Barack Husseing Obama.
5.28.2009 4:03pm
Cornellian (mail):

As a layman, I have always assumed that judges should take more a "fiat iustitia, ruat caelum" approach to the law.

As a lawyer, I always try to avoid the use of Latin. Admittedly, I am not always successful.
5.28.2009 4:48pm
martinned (mail) (www):

As a lawyer, I always try to avoid the use of Latin. Admittedly, I am not always successful.

For phrases like the one in question, I'd agree with you. But for legal principles and terms of art it can be useful to use Latin when faced with the challenge of bridging a gap between two legal systems and/or languages. ("volenti non fit injuria", the distinction between "culpa" and "dolus", etc.)
5.28.2009 6:37pm

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