MAY 28, 2009
Legal Realism Informs Judge's Views
By JESS BRAVIN
WSJ
WASHINGTON -- In a lecture at a Boston law school in 1996, Judge Sonia Sotomayor cited Judge Jerome Frank, the author of the 1930 book that turned American legal thinking upside down. Judge Frank argued in "Law and the Modern Mind" that the law was less a science than people supposed -- that, in reality, it reflected the personal characteristics of those applying it. The idea he helped advance, still taught if not always endorsed in law schools today, was called legal realism. Judge Sotomayor agreed -- and that perspective is riling conservatives opposed to her nomination.
"The law that lawyers practice and judges declare is not a definitive, capital 'L' law that many would like to think exists," Judge Sotomayor said in her 1996 lecture at Suffolk University Law School, summarizing Judge Frank's work. Confidence in the legal system falters, she said, because the public "expects the law to be static and predictable" when in fact courts and lawyers are "constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions." That view runs counter to the originalism propounded by conservatives such as Supreme Court Justice Antonin Scalia, which seeks to apply the Constitution the same way 18th-century Americans would have understood it.
Judge Frank, who served on the same federal appeals court in New York where Judge Sotomayor sits today, argued that the law changed along with the circumstances and concerns of the people applying it. The idea of legal realism came back in the now-famous 2001 lecture Judge Sotomayor delivered at the University of California, Berkeley, titled "A Latina Judge's Voice." There she disputed the argument by former Supreme Court Justice Sandra Day O'Connor that a "wise man" and a "wise woman" should necessarily reach the same verdict.
(snip)
Judge Sotomayor contrasted her views with those of Judge Miriam Cedarbaum, a Reagan appointee to the federal bench. Judge Cedarbaum "sees danger in presuming that judging should be gender- or anything else-based," Judge Sotomayor said. "Judge Cedarbaum believes that judges must transcend their personal sympathies and prejudices." Judge Sotomayor questioned whether that was possible, and added, "I wonder whether ignoring our differences as women or men of color we do a disservice both to the law and society." She cited a case in which a state supreme court voted 3-2 "to grant a protective order against a father's visitation rights when the father abused his child." Three female justices formed the majority, she said, while the two male justices dissented... In an interview Wednesday, Judge Cedarbaum declined to comment on the debate, but said: "I think that Judge Sotomayor will be a superb addition to the Supreme Court." Brian Leiter, a law professor at the University of Chicago, said Judge Sotomayor had described the way judges really operate.
(snip)
However, Judge Sotomayor's critics on the right, including those in the originalist camp, fear that her approach may lead different parties in cases to get different results depending on the ethnic makeup of the court—which would contradict the idea that everyone is entitled to equal justice under the law.
http://online.wsj.com/article/SB124346735555660341.html (subscription)
Printed in The Wall Street Journal, page A3
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