Avoiding meltdown

Here is the text of Judge Sotomayor’s opening statement. It is pretty basic, as befits a nominee who surely believes, in Senator Graham’s words, that she will be confirmed barring a “meltdown.”

In the one interesting passage, this is what Sotomayor had to say about her approach to deciding cases and writing opinions:

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

This paragraph attempts a lot. It almost certainly is a claim about the role “empathy” does, and does not, play in her decisions. It can also be read, perhaps, as a response to the criticism that she pours too much discussion of the facts into her opinions.

The statement seems a bit incoherent, though. She seems to suggest that once she has determined “what the law requires” she sometimes “accepts” a “contrary position.” Presumably, I’m either misreading this sentence or Sotomayor phrased it poorly.

The real question is this: if Sotomayor’s practice is to “strengthen both the rule of law and faith in the impartiality of our justice system” by carefully addressing the “arguments and concerns” of the parties, why did she depart so fundamentally from this practice in the Ricci case?

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