I wonder if we are seeing here the evolution of the Sotomayor Doctrine. That is to say, it looks like she is working hard today to articulate a theory of judging that is neither the pure, mechanical balls-and-strikes ideal laid out by John Roberts at his hearings nor the Obama Empathy Standard, which has been derided by the Republicans on the judiciary committee as un-American and dangerous—and unequivocally disavowed Tuesday by the nominee herself.
I think if we go back and watch the instant replay, the word Judge Sotomayor will have used the most today is facts. As she explains it, she is broadly deferential to the written Constitution and to the legislative branches, and she has taken pains to lay out—when Sen. Tom Coburn kept asking why she can’t just make rules that say life starts at 14 weeks and that people have the right to defend themselves—that “what judges do is different from the public conversation about what it wants judges to do.”
In articulating what judges actually do, she says today: “We don’t make law. We look at facts. … We look at what other actors in the system are doing.” She makes that point powerfully with both Coburn and again with Sen. Amy Klobuchar in explaining a Supreme Court criminal ruling from this past term with which Klobuchar disagrees. She is—without much help from the committee—slowly making the point that her work as a prosecutor and trial judge helped her understand how very much facts matter. Her experience shapes the way she looks at those facts. She says her process of judging involves looking at the statute, the Constitution, and precedent and then figuring out how the facts fit in. These facts can be new, as in different from the ones in the relevant cases that came before. The law can change. (Sotomayor has no problem conceding that.) She’s offering a sort of hybrid theory, explaining that empathy matters when you’re gathering and processing facts and trying to get both sides of the story but that when her passion really kicks in, it’s for rigid application of those facts to the law.