Yesterday’s Sotomayor hearing was very exciting. It began with Senator Leahy rhapsodizing about the “Tarzan Burglar” (“He terrorized people in Harlem. He would swing on ropes into their apartments and rob them and steal, and actually killed three people”), continued with Sotomayor warning of the dangers of nunchucks…

[choice quote: “[I]f there’s anybody near you, you’re going to be seriously injured, because that swinging mechanism can break arms, it can bust someone’s skull“]

… and concluded with Senator Graham using up any residual goodwill he had earned during his tousle-haired opening statement by haranguing Sotomayor in an extremely unflattering fashion:

But good TV, no?

If you’ll forgive me, I have to return to one point I made yesterday: the Obama administration’s decision to have Judge Sotomayor ventriloquize tired Republican talking points about judges “applying the law” rather than “making law.” One can only imagine what damage it does to the brain to hold these thoughts simultaneously:

SOTOMAYOR: Judges must apply the law and not make the law.

&

SOTOMAYOR: The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply. And that is was there substantial evidence that they would be held liable under the law. That was a new consideration.

Our panel didn’t look at that issue that way because it wasn’t argued to us in the case before us and because the case before us was based on existing precedent. So it’s a different test.

Not to mention the very existence of federal common law. But enough from the lowly first-year law student. Here’s a Georgetown law professor (and former Thurgood Marshall clerk) on applying the law:

Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

You can read the transcript of yesterday’s hearing here. Today’s proceedings begin at 6:30 am Pacific time.

Annie Wagner is The Stranger's former film editor. She was born and raised in Capitol Hill, but has since lived in such far-flung locales as Phoenix, AZ, Charlottesville, VA, and Wedgwood. After graduating...

20 replies on “Nunchucks, the Tarzan Burglar, and Senator Graham Being a Butthead”

  1. I don’t care if she has to dance the Hula Hoop. Get her on the court! Anybody who irritates those southern boneheads has to be a great Justice!

  2. Yeah, the capitulation to the “activist judges” meme bothers me as well. It seems self-evidently contradictory to suppose that one can apply laws without creating a way in which they apply to a particular case. I think the quote from the law professor is actually seeing more substance in Sotomayor’s statement than is actually there, but it still would be nice if everyone were able to be a bit more honest about what the law is, and what judges do.

  4. I don’t think it is a Republican talking point that justices “apply the law” instead of “making the law.” It’s the core of judicial review, the heart of our democratic process.

    I humbly suggest that you be wary about the difference, unless you enjoy what Scalia has done to constitutional law.

    Or, if you are opposed to anyone having a right to abortion, and think that it would be horrid to allow gay people to have equal rights, then by all means continue to undercut the foundation of judicial review and the origin of the Court’s power.

    It’s still a free country. But I disagree with what I see as a gross misapprehension of our legal system. I believe that our fundamental rights are most protected when we trace them to what exists in the constitutional framework.

    Legislatures make the law, the Court applies it. It’s a systems of checks and balances, and it’s the best we’ve been able to come up with.

    The first year of law school is a deranging time, in my opinion, and I wish you the best of luck getting through it.

  5. Yawn. Sotomayor is obviously talking about legislature in her first quote. She’s not talking about common law, military law, biblical law, sharia law, the law of gravity, the laws of attraction, the laws of when it’s okay to wear white, or the bylaws of Stranger staff meetings.

    Judge Roberts said essentially the exact same quote during his confirmation hearings (courts don’t make laws, they apply the law), but I didn’t hear anyone call him “intellectually unqualified”. Look up “modern racism” for the reason why, which is also one of many reasons your statement that Sotomayor is having an easier time because she’s Hispanic is ridiculous.

  6. @ 4 — Did you actually get through 1L believing “Legislatures make the law, the Court applies it”? Freaky – and comprehensively at odds with the Western (and any other known) tradition and practice of Law.

  7. Right, when you argue that you can wear a yarmulka in prison, you just look up the index to the constitution. It’s under “yarmulkas, in schools, prisons and courtrooms.” This is right after “Yards, prison, access to as a component of ensuring a lack of cruel and unusual punishment; see “Regular exercise unless especially dangerous” standard.” The thing about yarmulkas is on page 597 of the US constitution and the thing about how you have to let prisoners have some exercise, unless they’re especially dangerous, that’s on page 993993939393939 of the USA constitution.

    Judges are supposed to just look it up, and apply the law!

    Easy!

  8. @5: Roberts was appointed by a Republican, and the disavowal of judge-made law is a very effective marketing tool that benefits the Republican party and hurts the federal judiciary. It is stupid of the Obama administration to sacrifice this priceless opportunity to push back against the meme. The notion that Sotomayor is intellectually unqualified is supposed to be ludicrous–nobody really thinks that. Seidman’s point is that that it’s demeaning to the American public to have these smart people pulling the wool over everyone’s eyes and pretending they don’t know how our legal system works.

    I do not believe Sotomayor is having an easier experience because she’s Latina. I believe it will be easier for the Democrats to get the votes to confirm her because she’s Latina. There’s a difference.

  9. @6 – Annie is quoting a Federalist Society member, an organization that is decidedly “conservative.” The inflammatory language quoted about perjury and a lack of qualifications could have been a clue that something was amiss.

    But if you are looking for laffs, read the entire post by this right-wing professor, especially this:

    “Suppose then that a white, male Protestant judge said that he hoped that decisions by white male Protestants were better? This statement would indeed be offensive, but that is only because the contingent social meaning of statements made by majority and minority groups are not always symmetrical. When a member of a majority group makes a claim like this, it resonates with a history of systematically discounting the wishes and beliefs of a minority. There is no similar history of discounting the wishes and beliefs of the dominant majority.”

    http://www.fed-soc.org/debates/dbtid.29/…

    Sounds like someone is still bitter about Brown v. Board of Education and this pesky function of the Constitution protecting the rights of despised minorities.

    and really, Marbury v. Madison is the first thing most law students have to grapple with, and I think it makes things pretty clear:

    “”It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

    http://www.landmarkcases.org/marbury/hom…

  10. How long ago was it that a judge could say something like, “The President wants me on the Court, I stand on my record, and you should vote me up or down based on that. Any further comments by me would be inappropriate.”? Seems a little more dignified than having to jump through hoops explaining your “philosophy” so some Senators can grandstand for their constituents. Best wishes to all.

  11. @9: Wrong. I am quoting a Federalist Society online discussion of the Sotomayor hearings, in which a liberal Georgetown professor named Seidman participated. I quoted his comments because I agree with his point. The Federalist Society most certainly does not.

    @10: I think the hearings are a real opportunity for the American public to learn something about how the legal system works. That purpose wouldn’t be served by a silent review of the record.

  12. Of course she’s perjuring herself. The process demands perjury. No one smart enough to get through law school could possibly believe the things that it is necessary to say you believe in order to get confirmed. That’s how it works.

  15. #8, Fair enough. I misinterpreted your comments. I don’t know if she’ll have an easier time getting votes, but I’m sure she’s not having an easier time in the actual senate hearings or with analysts. The condescension is making me cringe.

    I still think it was pretty clear Sotomayor was referring to statutory laws. In layperson’s terms, that’s what “laws” refers to (not common law, regulatory law, etc.).

    Thanks for the posts though, glad you’re back on Slog.

  16. @ 11, my bad Annie, you are correct that he is described by a liberal by a host of right-wing sites now picking up his review.

    He just sounded so much like a right-wing ideologue, the association with the Federalist Society made a certain amount of sense.

    And this kind of talk just makes me livid:

    “While it is true that constitutional protection for gay rights depends upon contestable moral judgments, the failure to protect these rights also rests on such judgments.”

    http://gulcfac.typepad.com/georgetown_un…

    Since I heartily disagree that gay rights is something that arises from a moral ether. I believe that equal rights exist in our constitutional framework and it demeans our system of justice to suggest otherwise.

  19. @at 16, whoops, I meant, “described AS a liberal,” not “by a liberal.”

    and I think the point I’m trying to articulate is made nicely over at Slate:

    “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.””

    http://www.slate.com/id/2222736/entry/22…

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