Sotomayor is a devotee of legal realism

Evidence shows United States Circuit Judge Sonia Sotomayor’s record provides exactly what she thinks the judicial role is. Sotomayor is a devotee of legal realism. That early 20th century school of judicial thought amounts to judges bound by law? Get real!
In a 1996 speech at Boston’s Suffolk University Law School, Sotomayor embraced the main tenets of legal realism, that law is perforce indeterminate, and that lawyers’ role must be to shepherd the legal system to more and more progressive pastures. She encouraged her audience to teach non-lawyers there was no avoiding the indeterminacy of the law, and so indeterminacy ought to be taken as a perpetual invitation for judges to better society. Better Society?
This has nothing to do with following the law as written. In short, Sotomayor subscribes to the idea that judges’ role is inescapably legislative. In fact, she stresses some of society’s great advances came through judicial legislation. Laurence Tribe, Harvard Law School’s grey eminence of judicial imperialism, called Barack Obama the best student he had ever had. The skeptical were forewarned, then, that Obama would tend to nominate people for judicial posts who intended to use their positions as legislative, rather than solely judicial, offices. We are finding this out first hand.
Perhaps it is a forlorn hope to expect judges to treat their oath to uphold the Constitution as any more than a formality. If she thought judging was judicial, Sotomayor would not care what the ethnic background, class background, or sex of a particular judge was. The idea of legal realism is not new.
King James I, notorious English dictator of the early 1600s, famously said “Rex est lex loquens.” (“The king is the law speaking.”) In the end, it took the English a revolution in 1688 to rid themselves of kings who put themselves above the law. In America, Richard Nixon was driven from office for acting on his stated idea that whatever the president did was legal. One might have thought the idea of an official’s being above the law was an un-republican, even un-American, idea. He would not have been paying attention to the views of such as Obama, Tribe, and Sotomayor. Any senator who votes to confirm a legal realist is endorsing the idea the Constitution, at root, is whatever the judges want it to be. And that’s no constitution at all.

Rickey Dale Crain
Shawnee