The XX Factor

The Sotomayor Lesson for Students: Play It Safe

A guest post from Yale law student Adam Chandler:

Senator Lindsey Graham had a flash of regret at Sonia Sotomayor’s confirmation hearings on Monday: “The one thing I’m worried about is that if we keep doing what we’re doing, we’re going to deter people from speaking their mind. I don’t want milquetoast judges.” Based on my experience of college and law school, it might be too late.

Yes, Judge Sotomayor will be confirmed, and the lesson of her victory is clear: Play it safe. Say nothing, and join nothing, within a pole’s length of controversy. Be like John Roberts, whose life and career path was described as a Boys’ Life “Guide to Becoming a Supreme Court Justice.” He was able to ascribe his controversial writings to others: Chief Justice Rehnquist, for whom he clerked, and the Reagan administration, in which he served. Finally, choose your thesis topics with care: The senior theses of Hillary Clinton , Michelle Obama , and Ben Bernanke have been dissected by opponents and the media, as has Judge Sotomayor’s note in the Yale Law Journal .

For students who aspire to the bench or other high posts, the lesson plays out in disheartening ways. In my undergraduate constitutional law course at Duke, my professor laid out six lines of argument that could have been used to decide Roe v. Wade and polled the class to see which we found most plausible. At the time, I chuckled to see a couple of “gunners” squirm, hoping no one noticed them keeping their hands down in fear of taking a public position on The Issue. I have seen presidential-hopefuls refuse to contribute to an Internet travelogue on a sponsored trip to the Middle East. I know law students who shied away from writing on abortion, and others who were nervous about signing up for ideological student groups, uncertain what their membership might mean for them in the future. I even read a perfectly innocuous blog post about the writings of several law school classmates that ended with a disclaimer: If anyone mentioned in the post wanted to “clear it from their record,” it would be taken down. And I have not been immune: Friends told me I was crazy for wanting to write my masters thesis on affirmative action; I wrote it on undergraduate sleeplessness instead.

Such is the chilling effect of the intense personal scrutiny our nominees endure. Judge Sotomayor’s job on the Supreme Court will be to wrestle with-and take a stand on-many of the most difficult and controversial issues of the day. Wouldn’t it be nice if tomorrow’s leaders had experience doing that before they join her in Washington?

Photograph by Getty Images.