She doesn’t intend to, but she does, all the same:
I would love to have a sophisticated national dialogue about Legal Realism (which is much-discussed here at the University of Wisconsin Law School), but so far it looks as though the discussion will not be too sophisticated. It’s pretty much: she talked about Legal Realism, Legal Realism is judicial activism, and judicial activism is judges imposing their own political preferences, so Sonia Sotomayor is unfit for the Supreme Court. But, as University of Chicago lawprof Brian Leiter said:
“Everybody who knows anything knows that Legal Realism is a description of what judges really do… I give [Sotomayor] a lot of credit, frankly, for talking about it openly. It’s unusual for a sitting judge to say it openly, because judges don’t want to attract the political heat from acknowledging what everyone already knows, which is that appellate judges especially have to make new law – that they can’t just apply the law as written.”
I would love to have more Supreme Court Justices who say what they really think. Imagine if, when reading a “decision,” we were actually reading the decision.
Here is an excellent run-down on legal realism – well worth reading. But “legal realism”, “judicial activism” and such catch-phrases are really just a dodge, and a good part of the reason why the judicial system – and, especially, the lawyers who man it – are held in contempt. In the case of legal realism, what we have is a body of thought which refuses to say “I don’t know” – rather than admit that, at times, the law doesn’t cover the exact case before the Court, the Court simply decides to “get real” about it and make up legal feces as they go along. The underlying concept behind such things is a conviction that lawyers and judges know better – after all, they went to law school and have a book case full of law books, right? Must be smarter than the rest of us. They’re also rich, and we know that money is the measure of the man.
What do the people want? Well, the people want to know who did it – who did the murder/rape/robbery/con, and then impose the appropriate punishment on whomever did it, taking into consideration any mitigating circumstances. The people never were much interested in whether or not a crook caught red-handed knew precisely what his 5th Amendment rights were and the people certainly never felt it was the cops’ duty to tell the criminal about it…if you’re going in to crime as a career, its upon you to learn the ins and outs of criminal law, ya know? It took lawyers – once again, smarter than the people – to figure out that not only should a cop have to tell a criminal exactly what he can do, but that the way to punish the cops for getting it wrong was to release the criminal back into the public, to prey upon the people some more until the cops could dot all the i’s and cross all the t’s before bringing the miscreant back to the judge. It also took lawyers to figure out that someone who smokes for 50 years, and for decades after its found to be cancer-causing, are the innocent victims of tobacco growers…
We all know, in a moment, a hundred examples of lawyers and judges doing weird, inexplicable things – things which are so clearly in contravention of common sense and the law that it seems their goal is to see what they can get away with. Like the lawyers get together with the judge in the back room and say “hey, do you think they’ll buy a million dollar judgment for someone spilling coffee on themselves”? What we don’t need is another judge who thinks she’s so clever that she can figure out, all on her own, what is what. All we want out of our judges is the laws – as written – enforced, with due consideration given to the hierarchy of laws – ie, the US Constitution trumps the county ordinance. If the law turns out to be idiotic, then we’ll fix it, ourselves, via the legislative process…or, perhaps, we won’t…maybe we, the people, like idiotic laws. Its not for judges to decide.
Sotomayor is just another one in a long line of lawyers and judges who believes her own press releases. She’s unfit for the Court by virtue of her racist statement – but even if that is not to be considered dispositive, the fact that she wants to use “legal realism” rather than the law indicates that a judge is the last thing she should be. If she wants to make law, let her run for Congress…if she wants to be a judge, let her shut her trap on what the law should be, and just concentrate on what it is.
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