Sotomayor’s Civic Disservice

“No More Kabuki Confirmations,” blares the cover of the new ABA Journal, carrying a picture of then-Judge Sonia Sotomayor taking the oath before the Senate Judiciary Committee. The article is good reading, and it does a fine job of articulating the frustrations of the modern-day confirmation process. But the article paints the confirmation process as being harmful only insofar as it wastes time. And Sotomayor’s evasive answers are presented as regrettable, but, under the circumstances, understandable. I think that assessment is too rosy. 

Sotomayor’s testimony, amplified by tremendous media coverage, strongly abetted the dumbing down of American public discourse about the judiciary. 

Sotomayor repeated the same refrain over and over – so much so as to cement it into the public consciousness: “The task of a judge is not to make law. It is to apply the law.”

The problem with that statement is that, at best, it is an eighth-grade understanding of the American court system. If one of my law students wrote that on a final exam, I would probably beat my head into my desk.

Judges have enormous power in shaping the law. I won’t belabor the point – it is manifest. And Sotomayor knows it. More to the point, lawyers and legal scholars all know that she knows. But millions of Americans across the country who were watching the hearings might not. 

The legal community appreciates all too well the dance performed in the hearings. No lawyers saw Sotomayor’s testimony and concluded from it that she is ignorant. They concluded, no doubt, that she was trying deftly to manuver the confirmation process. As she was. But we should not pretend that no damage is done when a judge, especially one widely praised for her intelligence, talks as if the work of the Supreme Court, done properly, is clear-cut and perfunctory. 

“Judges,” Sotomayor said, “don’t determine the law. Congress makes the laws.”

Why shouldn’t non-lawyers take that statement at face value? I am sure many people hearing Sotomayor’s testimony assumed what she was saying was accurate. Yet it is not. 

It is no defense to say that Sotomayor was simplifying things. Sotomayor’s statements were oversimplified to the point of being wrong. More importantly, the Sotomayor hearings focused the country’s attention on jurisprudence and the role of judges. It was a chance for the American public to do some considered reflection on the courts and our legal system. Sotomayor should have felt some burden to speak in a way that would illuminate the issues rather than obfuscate them. 

It’s not hard to understand why Sotomayor did what she did – she wanted to be confirmed. But with the current Democratic supermajority in the Senate, it would have taken a spectacular meltdown in front of the Judiciary Committee for Sotomayor to put her appointment in jeopardy. She should have risked a small flap by speaking about the law in a more sophisticated and complete way. Compared to other nominees in recent history, Sotomayor spoke from a rare position of political safety. She could have afforded to be more forthright in her responses. 

My real fear is that Justice Sotomayor may have done something worse than merely pass up an opportunity to help Americans understand something more about our legal system. I am afraid that Sotomayor may have lessened the opportunity for others to do so in the future. By bowing to a soundbite-level understanding of the law, Sotomayor may have helped to entrench it. And that is a real civic disservice.