Judge Sonia Sotomayor would seem to be the perfect pick to replace retiring Supreme Court Justice David Souter. That, at least, is the opinion of Jeffrey Rosen. Writing in The New Republic (July1, 2009), Mr. Rosen touts Judge Sotomayor as a nominee who is growing in her understanding of the Constitution, the role of the courts, and the nature of law. He reports that she “still hasn’t settled into a consistent judicial philosophy, which can either be viewed as a lack of constitutional vision or a sign of pragmatism.” He continues, “It certainly can make her majority opinions hard to predict.” Mr. Rosen reports that, during her years on the bench, Judge Sotomayor has demonstrated but little interest in legal history or precedent. She has moved back and forth across the spectrum of jurisprudential perspectives – sometimes a legal activist, sometimes a textual judge. She even joined in one opinion overturning a decision she had previously made. Her approach to judging reveals “a methodological eclecticism” which “can lead to ideological unpredictability.” Overall she appears to be “empirically grounded in pragmatism that challenges the majority’s premises on its own terms.” Like I said: perfect. We don’t quite know where she stands on the Constitution, but sometimes she can be as conservative as Justice Scalia. She testifies to being a liberal and indicates that circumstances play a considerable role in how she should decide cases. She’s unpredictable, has no settled judicial philosophy, and may be inclined to second guessing her own opinions. If we expect to get “justice, and only justice” (Dt. 16.20) from Justice Sotomayor, well, we may or we may not. We’ll just have to wait and see. So what does Mr. Rosen indicate is her great asset as a nominee? “And the politics of her appointment are so overwhelming that they’re difficult to resist.” Politics should not factor at all in the appointment of a justice to the Supreme Court of the United States. But it seems that, where Americans might hope to receive “justice, and only justice,” what we’re getting instead is politics, and only politics.
T. M. Moore
