Arguing that she views the law as a vehicle for her personal feelings, Judge Sonia Sotomayor's opponents have pointed to a 2001 speech she delivered in California, which the White House yesterday said she'd articulate differently today.
They've pointed to a videotaped 2005 appearance at Duke University, she said the "court of appeals is where policy is made."
And now they're looking at a 1996 lecture at Suffolk University Law School, which evolved into an article contributed to the Suffolk University Law Review, entitled "Returning Majesty to the Law and Politics: A Modern Approach."
She and her co-author wrote that "change — sometimes radical change — can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an often unpredictable system of justice is one that serves a productive civilized but always evolving society."
You can read the entire article HERE.
Sotomayor in the lecture and article discussed Judge Jerome Frank, who in 1930 argued "Law and the Modern Mind" that the law often reflected the individual characteristics of the judges applying it. Frank was one of the innovators of a school of legal thought call Legal Realism, which is at odds with those such as Justice Antonin Scalia who consider themselves originalists — applying the Constitution today as those who wrote it in the 1700s intended it.
"The law that lawyers practice and judges declare is not a definitive, capital 'L' law that many would like to think exists," Sotomayor wrote.
She quoted Frank at length from Law and the Modern Mind (1930): "Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable," Frank wrote. "Much of the uncertainty of law is not an unfortunate accident: it is of immense social value."
Sotomayor seemed to repeat some of the same arguments from Legal Realism, writing that "lawyers do themselves a disservice by acceding to the public myth that law can be certain and stable."
Discussing reasons as to why the law sometimes seems unpredictable, Sotomayor also wrote that "a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction."
In an interview with the Wall Street Journal, University of Chicago law professor Brian Leiter, said Sotomayor was just speaking the truth.
"The idea that appellate judges never make law, and only apply the law as written, is a fiction, as every American lawyer knows," Leiter said. "The American legal realists made the case famously in the 1920s and 1930s."
But not surprisingly, Sotomayor's 1996 article has started to attract conservative criticisms.
"No one denies that society goes through certain changes that may necessitate alterations in law," wrote Deborah O'Malley at the Heritage Foundation blog, "but the Founders gave us a legislative branch to address such needs."
"This is astonishing stuff," editorialized the Washington Times. "It says the public itself should not be able to count on the meaning of laws remaining stable from day to day – even though the people, those governed by the law, have never given their assent, through representative elections, for the laws to be changed. This theory is just a high-falutin' way for Ms. Sotomayor to argue, as she did in the infamous videotape, that a role of a judge is to make policy…
"In place of laws readily understood and relied upon by the general public, Judge Sotomayor would have 'judges declare' the meaning of the law by 'adapting it to the realities of ever-changing social, industrial and political conditions.' That is what elected legislators are supposed to do. Ms. Sotomayor's 1996 essay provides ample proof that she believes, as she said on the videotape, that appeals court judges should make policy."
Not all conservatives, it should be noted, think that videotape is so damning.
Walter Olson of the Manhattan Institute writes "conservatives keep publicizing a YouTube clip where she confides to a panel-discussion audience that appeals courts are 'where policy is made.' Sorry, but that's a standard observation among legal commentators these days—by no means limited to liberals…"
After all, as Jason Linkins points out, Justice Scalia in 2002 wrote in his ruling in Republican Party of Minnesota v. White, that "state-court judges possess the power to 'make' common law" as well as that "the judges of inferior courts often 'make law,' since the precedent of the highest court does not cover every situation, and not every case is reviewed."