Wednesday, August 27, 2014

ICYMI: Sotomayor’s Politicization of Justice and Judging for Press Praise

In an interview with National Law Journal, Justice Ruth Bader Ginsburg responded to a question in the following damming way about Justice Sotomayor.

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did…

As Professor Josh Blackman put it:

Oh my. This paints Justice Sotomayor in such a negative, damaging, and weak light.
First, what does it mean that she “went along with the court.” She joined the majority opinion. That’s a vote, not passive acquiescence. Granted the opinion was narrow, but Sotomayor could have dissented or concurred if she wanted too. RBG dissented. But Sotomayor didn’t. Perhaps the Justices wanted to build consensus for a narrow opinion. But that’s a vote! Why would Ginsburg characterize her in this manner?

. . . Second, if true, it is scary that she is so responsive to press reports, that she wants to write a vigorous dissent to set them right. Justice Scalia and Thomas go out of their way to say they don’t read press accounts of the Court. They are lambasted for being out of touch. But that’s the point. They want to be insulated. Is Sotomayor that fragile and thin-skinned that she feels compelled to write an opinion based on what the media says. I would hope that a Justice would have more fortitude than to be so easily impacted by the press. She shouldn’t have to “quell” “doubts” of the chattering class.  And here, the coverage was mild. Compared that to the full court press on the Chief in NFIB!
But you know what? It worked. Attorney General Holder, with the backing of the White House, spoke glowingly of Sotomayor’s dissent. It was the talk of the town in D.C. And the press now knows they can impact a Justice. It’s one thing for us to speculate about it. But now the Justices confirmed it.

How strange that Sotomayor, in a betrayal of the ethic of judicial independence, should be so concerned about re-positioning herself with those who were disappointed by her Fisher vote. How telling that Ginsburg would eagerly accommodate her—and not feel any embarrassment at revealing the fact.

Relatedly: A D.C. lawyer tells me that he was jarred to hear Sotomayor, in a private conversation, refer to lefty Hispanic groups as “my [i.e., Sotomayor’s] constituents.” A more blatantly political view of the judicial role is difficult to imagine.

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