Dialogues

Still Thinking About the Sotomayor Shift

Just how much is Judge Sotomayor hiding her true views in her confirmation hearing? I’m still wrestling with this question as I read through yesterday’s coverage. I know that’s a bit old school of me as we’re all supposed to be reading Twitters and live blogs (and dialogues!) of instant analysis, making anything less immediate obsolete. All of us covering this hearing have pointed out that Sotomayor has sanded down her comments about what role personal views play in judging. But I’m still wondering just how much of a recalibration she’s really made. Was it a shuffle, or does she risk spraining another ankle as she stretches wildly from her previous mark?

Aren’t Republicans having to rely on Sotomayor’s speeches rather than rulings because she has largely followed the law and the facts in her career? They’re trying to turn the Ricci case into proof of her inner touchy-feely core, but they’re having to stretch. They can’t use her language. Instead, they have to draw a reductionist inference.

On Tuesday, when Sotomayor asserted that she would follow the facts, it was seen as a walk-back from the standard she discussed in her speeches. But was it a walk-back from her legal rulings? If it were, wouldn’t Republicans be citing those cases along with the speeches? Though, of course, the speech has the incendiary language you can’t use in a court ruling, which is why Lindsey Graham seemed to be trying to get Sotomayor to repeat the remarks on camera yesterday. (That, by the way, seemed a little underhanded and unnecessarily theatrical from a man who also claimed to want to forgive people for past statements made in error.)

Isn’t Sotomayor’s record full of more cases where she didn’t rule by “empathy”—which is why on Tuesday Chuck Schumer could cite many examples of rulings in which she demonstrated cold adherence to the law?

When we try to pin people down on their statements, as the Republicans are striving to do here with Sotomayor, we’re dealing with not only what they said then and now but with all the intervening interpretations of what other people thought they meant. That often means figuring out what’s an accurate assessment and what’s wishful interpretation. So my question is: Is viewing Sotomayor’s testimony as a vast step back from her previous views a version of the same thing Republicans are being criticized for? They’re overreading her speeches and not looking at her record.

—John

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