The Senate Judiciary Committee voted almost along party lines yesterday to send Judge Sonia Sotomayor's nomination to the full Senate for a confirmation vote. Senator Lindsey Graham (R-SC) was the only Republican to vote in favor of her nomination. Two other senators, Senator Orrin Hatch (R-UT) and Senator Charles Grassley (R-IA), voted for the very first time in fairly lengthy Senate careers against a Supreme Court nominee. What's interesting about this is that this nominee's actual judicial record is probably more moderate than anyone else on President Obama's shortlist, and her decisions have been more moderate than several nominees Senators Hatch and Grassley have confirmed. So what's going on here?
I think there are two explanations. One has to do with our location in the history of the judicial confirmation process. The other has to do with the Two Sotomayors narrative that the Republican senators have been crafting. I've talked about the judicial confirmation process before (most recently here). I do think Republicans are getting frustrated that they've been letting Democratic judicial nominees sail through because of their commitment to give presidents deference, while Democrats have been blocking, filibustering, and voting against nominees who are as qualified and as ideologically-mainstream as the nominees Republicans have not opposed. Even some who are committed to showing presidents deference are going to moderate that commitment in such a setting if they think the judiciary is at stake because of the practical consequences of the two parties having different approaches to the amount of deference senators should give the president. This probably gives the second issue more weight than it might otherwise have, but I think it's at least a significant driving force in Republican resistance to Judge Sotomayor's nomination, even if they're not saying this in their explanations for their votes.
The explicit reason most of the Republican senators are giving depends on a running narrative from the Republican senators on the judiciary committee about the Sonia Sotomayor of her speeches and the Sonia Sotomayor of her decisions, and they want to know which one will appear on the Supreme Court if she's confirmed. Some of these differences are overstated, but some issues do raise a concern for many people. We might assume that a judge who has consistently ruled in an unbiased way in the majority of cases (which all sides agree is true of her) will continue to do so on the Supreme Court, even if she has expressed views in speeches that might seem at odds with that. It's been interesting to see some of the Democratic senators defending the speeches outright, while others have insisted on standing by her judicial record as a way of creating distance between her judicial decisions and her public statements.
Sotomayor herself has notably taken the second approach and backtracked from a number of things that she seems to have clearly endorsed in those speeches, emphasizing that her decisions have consistently applied the law and not interpreted it in light of the things the speeches seem to involve. She has articulated a view in her hearings on the relevance of foreign law to judging that sounds more like Chief Justice Roberts and Justices Scalia, Thomas, and Alito in their resistance to use of foreign law for interpreting U.S. law and the U.S. Constitution. Consider her written response to Senator Sessions' questions:
In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. The Supreme Court's Eighth Amendment cases establish how the Court considers constitutional challenges to the death penalty, and I accept those decisions.
On the other hand, her speeches on the subject sounded more like Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, who have on several occasions used foreign law as a reason to consider evolving standards of decency or a new national consensus of policy preferences as reasons to take the U.S. Constitution and U.S. laws to mean something very different from what they originally meant and have meant for the entire history of interpretation (e.g. on what constitutes cruel and unusual punishment or how to interpret due process in the 14th Amendment).
In these cases she's right to say that there were other issues, so the appeal to foreign law doesn't determine the outcome by itself, but a lot of readers have come away from the opinions with the impression that foreign law was driving it to begin with, and the justices had to find some way to justify their policy preference rather than simply deciding things according to precedent or what the text of the Constitution requires. So what she says here seems to me to be at odds with what it seems to me that these decisions she cites favorably actually do. Also, her speech on this question expressed concerns about how the United States would be viewed if we were significantly at odds with international law on important issues. A judge could be concerned about how our laws are viewed as a step toward arguing for changes in the laws via legislative process, but this statement wasn't in a speech advocating that. It was in a speech advocating the use of foreign law to get ideas for what judges in the U.S. can do.
Given a difference between her opinions as a judge and her speeches as a private citizen, the distinction between appellate judges and Supreme Court justices might make all the difference in which one of those would appear on the Supreme Court. If her views from her speeches really are worrisome, and the only thing keeping her from enacting them is that she's bound by Supreme Court precedent and Second Circuit precedent in her current role, with a Supreme Court review always possible for any decision she renders, then she will be freed from those constraints on the Supreme Court. That's why the narrative of the Two Sotomayors is still compelling for many people as an argument against her nomination. It's no defense, if this is right, to point out that most of her decisions have been in terms of legal rather than policy arguments or to point out that she hasn't based her decisions on empathy but on the law.
Now whenever two statements seem at odds, there are several options:
1. The person is being dishonest and saying two different things. In a political context, this might be (a) in order to satisfy two different audiences, and the person has no substantive views on the matter. It may be (b) to satisfy one audience who has a different view from the person, but the person's real view comes through in other contexts. It might be (c) that the person has views in the middle, but exaggerations appear in contexts where such embellishments cater to the audience and thus make the mediating position look more extreme in either direction.
2. The person actually thinks the statements are compatible. This may be (a) because they are, and critics don't get it. It may also be (b) that they aren't, and the person saying the different things hasn't realized the inconsistency.
3. The person has changed their mind.
The third option is not available in most of these cases, because Judge Sotomayor was repeatedly asked if she had changed her mind, and she didn't take that option. She instead tried to reconcile her earlier statements with what she was now saying. Also, I very much doubt 1a is true. I think Judge Sotomayor really does care about the issues she chooses to opine about, but the other views might all be at least initially plausible for some of these apparent inconsistencies. It's even possible that different ones are true of different issues. On the foreign law question, I think what she's doing is using language that sounds like it's what she should use to cater to the audience while interpreting that language in a way that's actually consistent with her initial speeches on the matter. Whether the language she is using is dishonest depends on whether she realizes that Justice Scalia, for example, or Republican senators, would mean something very different when they use the same language. I don't know the answer to that question. But it's clear to me that what she means by her distinction between using a law (in the sense of seeing it as determining the outcome) and getting ideas from a law (in the sense of seeing ways that judicial decision-making can go but not determining the outcome) isn't the same thing conservative judges would mean when they say they don't think foreign law should be used in U.S. judging. It's not clear to me that she's being dishonest here, but her position sounds more conservative than it really is.
She has made occasional statements in the confirmation process that seem more suspect to me. In conversation with Senator Jim DeMint (R-SC), Judge Sotomayor claimed that she'd never even thought about whether fetuses might have rights. I find it unlikely that very many post-Roe adult women in the United States of childbearing age or greater have never considered that question, but this is a well-educated judge who came of age in the Roe v. Wade generation and who lived in two communities who took opposite stances on the question (her community of leftist political activists in college and the often socially-conservative Latino community background at home). She said in herself that she doesn't think the courts have settled the issue fully in terms of the political debate, and she admitted to knowing Latino people who hold pro-life views (she wasn't asked her own view). She's obviously educated on the issues, but she's never even thought about whether a fetus has rights? Maybe Senator DeMint is completely making this up, since this is from his report of their private meeting, but if I were going to make something up about a nominee for political gain I would make up something much more damning than not having thought about an issue, so I don't find that very likely.
Her account of fundamental rights in response to questions about whether the right to bear arms is fundamental seems at odds with how that term is usually used. Randy Barnett points out that she's got the whole issue backwards and isn't using the term as it's generally used in such discussions, which means she either misses to whole point or is disingenuously redefining it to make her decision on the question seem more defensible in this political context. Either way, it doesn't reflect well on her.
But many of her statements do seem to be of the sort where it's hard to tell if she's knowingly speaking deceptively or if she's just using her terms differently and comes across sounding more moderate or even conservative than her speeches would lead us to believe because she's using the terms in a way judicial conservatives would not but saying things they'd say. Another example is President Obama's empathy standard, which she clearly and consistently denounced in her testimony at her hearing. She sounded like a textualist originalist at this point. But when you look at some of her actual cases and her view of Supreme Court cases that she was willing to comment on, it's hard to reconcile them with this originalist language. She has a much rosier view of what judges do than I do. She really doesn't think judges do what they're accused of when people talk about judicial activism. She doesn't think judges depart from simply applying the law in new cases, except in very rare cases. If she really thinks certain cases just go by U.S. law in the way she's been describing the judging process, then she has a much broader view than I do of what falls under that, since the Supreme Court very much did interpret the U.S. Constitution in light of how it would be interpreted if contemporary Europeans had used the same language. There have been appeals to "evolving standards of decency", which doesn't sound like applying the original meaning of the Constitution to a new setting but seems more like changing the meaning of the Constitution to fit with how we now understand the terms originally used (citing European meaning of those words as part of the argument).
The majority opinion by Justice Kennedy in a recent death penalty case included a rapid succession of policy arguments (good ones, in my view) against the use of the death penalty in cases of child rape. She doesn't think judges use policy arguments, though. They interpret the law as it stands. Yet when the Supreme Court was faced with an error in that opinion, which had claimed no precedent on death penalty for child rape, and it turned out there was a precedent in military law, they ignored it and didn't revise their arguments or decision in any way. They took their policy arguments to be determinative and precedent irrelevant. Cases like this seem to me to be a stark contrast with how she says she views the role of judges, and yet she also says that her view of how judges should rule is also her view of how judges do rule, which makes me wonder if she means the same thing I do when I use the words "interpret and apply the law" and what I mean when I say I don't think judges should make decisions based on policy preferences.
In the end I can't tell if she's being dishonest in some of these cases or if she' s just using language in a way that many who hear these statements out of context would happen to hear as meaning something other than what she seems to intend. I'm willing to give her the benefit of the doubt and attribute to her the second, because I do think that reflects better on her. But I don't think the solution to the Two Sotomayors problem is to say that her position is consistent and leave it at that, because that will leave many hearing her statements and being misled, even if it's not deliberate deception on her part. She's not always using this language to mean the same things the Chief Justice and Justice Alito did in their hearings a few years ago when asked the same questions. We at least ought to acknowledge that, even if we should recognize that there are ways to put her statements together consistently.