Blogs and Stories
She's Lying
Jonathan Ernst / Reuters
Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.
Four hundred years ago, upon the occasion of his sudden religious conversion, Henry de Bourbon famously remarked that “Paris is well worth a Mass.” Converting from Protestantism to Catholicism allowed him to become Henry IV, king of France, and he ruled over that nation happily ever after. (Until he was assassinated by a fanatic Catholic.)
The official story Americans are given about how the law works is a childish fairytale.
The first three days of Sonia Sotomayor’s testimony before the Senate Judiciary Committee bring Henry’s good-natured cynicism to mind. In theory, these hearings presented Judge Sotomayor with a difficult moral dilemma: On the one hand, she could give a halfway honest account of how federal appellate judges in general, and Supreme Court justices in particular, deal with the complexities of legal decision-making in situations where what “the law” requires is, at best, deeply unclear.
Or she could feed the Senate and the nation a bunch of nonsense about how, in the words of John Roberts at his confirmation hearings, judges are like baseball umpires. "Umpires don't make the rules; they apply them,” Roberts said. "And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. I will remember that it's my job to call balls and strikes and not to pitch or bat," he added.
This is nonsense because every case decided by the Supreme Court could, within the rules of the legal game, be decided in more than one way. A nominee who says that he “will decide every case based on the record, according to the rule of law” is saying precisely nothing—which of course was Roberts’ original intent.
In theory, this was Sotomayor’s choice. In practice, she was always going to do what every Supreme Court nominee does, which is to burble reassuringly about how, in her words, her judicial philosophy “is simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law,” she said, repeating Roberts’ soothing pabulum, minus the references to baseball and apple pie.
Sotomayor’s performance, predictable though it was, drove some otherwise sympathetic observers up a metaphorical wall. For example, Mike Seidman, an unambiguously liberal Georgetown University law professor, fumed that he “was completely disgusted by Judge Sotomayor's testimony. 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.”
After elaborating on how absurdly simplistic and misleading Sotomayor’s description of appellate court decision-making was, Seidman went on to ask what it “says about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? 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,” he added.
Perhaps—but it’s a sad state of affairs when a nominee in as strong a position as Sotomayor isn’t willing to risk even the most modest gestures toward judicial candor. To take an extremely simple example, consider her statement that she would “interpret statutes according to their terms and Congress's intent.” As any law student could tell you, a very common source of legal conflict occurs when the apparent plain meaning of statute’s text conflicts with the legislature’s intended meaning. In such circumstances, which meaning should prevail?
Someone like Justice Scalia would give one answer that question, while someone like Justice Stevens would give another. There’s one place, however, where you won’t find the answer to this exceedingly straightforward question: “the law.”
And the typical Supreme Court case involves legal questions that are orders of magnitude more complex than this example.
Of course Sotomayor knows all this, but as Seidman suggests, the official story Americans are given about how the law works is a childish fairytale, that in turn more or less requires people in Sotomayor’s position to utter innocuous banalities.
There’s plenty of blame to go around for this sorry state of affairs, but special mention should be given to the campaign carried out over the last generation by conservatives to convince Americans that “activist judges” are at the root of many of our national ills. This campaign has been based on the myth that there are clear lines between, for example, “interpreting the law” and “legislating from the bench,” and that it’s possible to decide controversial legal questions in a politically neutral fashion. And the success of that campaign is attested to by the intellectually degrading spectacle that is every contemporary Supreme Court nominee’s testimony.
Once these judges are on the court, however, they’re willing to play a different tune. Consider this quote from a recent Supreme Court case: “I am not so naïve as to be unaware that judges in a real sense ‘make law.’ But they make it as judges make it, which is to say as though they were finding it.”
Those are the words of Antonin Scalia—the judicial hero of so many of those who have been railing against activist judges and legislating from the bench. Naturally, neither he nor anyone else in his position is so naïve as to be unaware that even this glimmer of honesty would be unacceptable while testifying under oath before the Senate of the United States.
Paul Campos is a professor of law at the University of Colorado at Boulder.
What Are We About to Pass?
The Daily Beast is dedicated to news and commentary, culture, and entertainment. We carefully curate the web’s most essential stories and bring you original must-reads from our talented contributors.
10 Power Food Combos
Divya Gugnani is the CEO and founder of BehindtheBurner.com, an emerging culinary media brand that creates expert-based content about food, wine, mixology, and nutrition.
How Barack Beat Bibi
Peter Beinart, senior political writer for The Daily Beast, is associate professor of journalism and political science at City University of New York and a senior fellow at the New America Foundation. His new book, The Icarus Syndrome: A History of American Hubris, will be published by HarperCollins in June. Follow him on Twitter and Facebook.
What the Torture Prof Teaches
Paul Campos is a professor of law at the University of Colorado at Boulder.
Leave Fat People Alone
Paul Campos is a professor of law at the University of Colorado at Boulder.
Note to Alito: Obama Was Right
Paul Campos is a professor of law at the University of Colorado at Boulder.
Cymatic
The title of this story is a bit melodramatic. She hasn't actually lied, she "spin doctored" her answers to jump through the hoops. I think giving the mad-dog republicans any meat to chew on would be a mistake. They looked through her entire record and could only find one statement they disagreed with, yet they have been hectoring her about it, and taking it out of context. Can you real blame her? She's just doing the smartest thing in the situation.
Watching her listen to some of these pompous blowhards lecture her on how the legal system and the supreme court works is a bit much.
hithere3
The beast editors are having a rough time figuring out how to be sassy and not shrill/sensational. It's a fine line, admittedly, and they fail about 50% of the time.
logicwhore
Hey guys listen ...this whole confirmation is a joke to begin with.......not until after Brown v The Board of Ed. did the "Good ole boys" decide that they better screen these judges so they dont get any more civil rights shit thru the door.....1955 was when this lil Lobbyist media shit began. So lying or not Sonia is simply playing the game ......side bar...how the hell is Sessions qualified to ask any one questions when he him self failed the exact same process? I know math pretty damn good and that shit don't add up buddy.
david865
Hey.....what are you afraid of? That she is not a male?? That she is not of your Race?? That she is brighter than you???, get a life...she is qualified,earnest, has Balls and ...I vote for her! And I don't even vote in your country. I think the people in the US of A are afraid:,thats right...afraid. So, join the club,we are all afraid..get used it. P.S. Vote for her.
This user is no longer registered.
roger37
Who is this guy Seidman, to be so "outraged" at Sotomayor's answers? How about being a little realistic at what she has to deal with from the redneck Senators on Judiciary.
And the headline of this piece is trashy.
steff47
They are called Republicans their job is to give her a hard time in hopes that she'll quit. Their is no truth, justices or the American way with them only hate for anything not Republican
possumdearie
Calling members of the Senate Judiciary Committee "rednecks" is trashy. You're racist trash and a barking moonbat like Sotomayer and Obama. He listened to Jeremiah Wright and palled around with Ayers. Sotomayer worked with PRLDF, an organization that brought a lawsuit lawsuit comparing the denial of taxpayer-funded abortions to slavery. She was a liberal activist for 12 years, and there was a link between her actions and her nutty "wise Latina" comments. She is an idealogue like our President, who wants "empathetic" judges, and all her talk about respecting the law is just saying what she has to, a habit of lying the Democrats fully support.
roger37
Wacko Alert! Wacko Alert!
This user is no longer registered.
Dimlah
Hmm, a law professor sequestered at a University being 'outraged' at the fact that the real world doesn't measure up to the idealist standards he shoves down the throats of his students. Shocking.
What's next guys, an article about a political science professor being outraged that campaigns aren't civil, high-minded exchanges of policy proposals before an engaged and informed public?
Not that both Seidman and the hypothetical professor I mentioned don't have valid points. They're just self-evident points that have no bearing on real life and shouldn't constitute 'news.' Much less news with a sensationalist and misleading title.
baptox
Amen. And it's not lying. It's "shining on." The title should be "Sonya Shines on GOP Senators."
This process is not meant to get at the truth of the role of judges nor is it meant to shed any significant light on a nominee's judicial philosophy. It is merely a silly game designed to score blatant political points.
The fact that we have dimwits like Lindsey Graham and Jeff Sessions questioning a potential supreme court justice should be an indication to professor Campos that this is all about political showboating.
cdarr01
I agree with the first poster-- the title is misleading. Campos' controversial claim seems to be not that Sotomayor lied, but that the system (and therefore the American public) *requires* that these lies be told in order to, as Seidman said, be appointed the SC at all. This seems not an indictment of Sotomayor as much as the process of confirmation and the culture of mainstream American jurisprudence.
Granite
I've been amused by the way she let Sessions and Coburn make buffoons of themselves. They swaggered in there as if they were going to teach the little lady a thing of two and only succeeded in making asses of themselves. I doubt either of them realize how badly their behavior reflected on themselves.
socialworklady
"The Daily Beast's Paul Campos on how she's denying the truth about our legal system."
HA HA!!
Like the hearings are designed to get to the truth. Nope. They're a stress test. Or some kind of weird frat house hazing ritual. Whatever --she's flying through it. She has yet to take the bait those creepy, condescending boys hang out there.
Judge Sotomayor will win. She will beat them at their own game. And she'll be sitting on the bench long after the buffoons have vacated their senate chairs.
joymars
Agreed, social!
Gramm said as much, that the hearings are merely a stress test. He said short of her having a meltdown, she would be confirmed. They can't run a torture session, but they've got to show up and put her through some meaningless paces.
This all started with the Bork (non)confirmation hearings -- and came to a fevered pitch with the Thomas (#@!*)confirmation hearings. We all know that actually nothing of import will be said if the confirmee is at all intelligent.
It's theater. But I also agree with the blogger that it doesn't send a very good message about our political system in general, our judicial system in particular and puts the lie to the myth of the separation of the two.
djanimaequeen
It's enhanced interrogation.
possumdearie
She's diabetic. I give her 15 years before she croaks.
joymars
She is? Link?
socialworklady
joymars,
She has type 1 diabetes. She's apparently in great health. Here's a link.
http://www.cnn.com/2009/HEALTH/05/27/sotomayor.diabetes/index.html
dreary dearie,
Charming. Stay classy.
whipmawhopma
socialworklady - You're right. Or at least it sure seems like a stress test or some kind of initiation ritual.
If she can listen to all the speeches and posturing by the greatest of the Great Apes without cracking up or losing it, while at the same time avoid saying anything of substance, then she's in.
socialworklady
whip,
Just finished listening to the last of the five panels of witnesses testifying before the committee both for and against her confirmation. Barring some stoopid move by one of the clubhouse boys to delay the vote, it will go ahead on Tuesday next week.
Done. She's in.
And she ain't there to refill your coffee, boys.
perryslo
The answer to every question should be simply, "I don't apply the law in general ambiguous ways. I am not really allowed to address specific types of issues that may be coming before the court. I am more than willing to answer any question about any previous ruling at might have made but I am unwilling to speculate as to how i might rule in the abstract in the future. I interpret the law narrowly as defined by the merits of the case. I do not make general rulings sweeping away precedent and case law. My rulings are very narrow, not broad.
The Congressmen posing the questions today were most certainly beneath Sotomayor in intellectual capacity and understanding of the law. To suggest, as the author has, that it is Sotomayor's job to educate a mob who is trying to unhinge her, or disqualify her is quite ridiculous. It's like suggesting a job applicant scolding her interviewer for asking questions she might feel are irrelevant.
ChrisB
People like this guy will help win more of the Latino vote in 2010.
There is a lot of conservative seats that could become line ball with a big boost in the Latino vote.
lionss
Chris are you a Latino? If you are you are being totally dishonest, if you are not then you need a little education. Just because Sotomayor is Puerto Rican does not mean she will get the Hispanic vote whether confirmed or not. Lationos/Hispanic are a diverse group among themselves and generally one person from one Hispanic group say Mexican doesn't give too bits whether she get confirmed or not. Wake up not everything or everybody likes being defined by a group. I should know I'm "Hispanic/Latino"
Genni2002
Actually, am kind of impressed by her.
theBUSHdemocrat
I was too. I could never have held my composure the way she did.
It reminded me of the "Boys Only" Tree house with a sign that said "No Girls Allowed" on the door and the only response to why was "Because girls are gross!"
joymars
On a lighter note:
Al Franken joshes Sotomayor about watching Perry Mason. He remarks that it was odd that she became a prosecutor since the one on Mason never won. O.K, they bantered, the prosecutor won just once.
Well, that one Mason episode happened to star an actor named Steven Franken -- Al Franken's second cousin!!!
Story:
http://www.salon.com/wires/ap/2009/07/16/D99FDD080_us_franken_perry_maso n/index.html
neverlate
I'll take her at her word that she doesn't vote her emotions or prejudices when deciding a case; something you seem to espouse.
reelfeel
I agree with most here that commented on the title 'She' Lying' is a bit too harsh to say the least. I just think Professor Campos should put his focus on this, the Senators grilling Sotomayor on meaningless and repetitious bantering on her being a reverse racist?!!! The American public is smart enough that the "wise latina" comment was taken out of content and that is just a ploy by the right wing racist led by Rush Limbaugh, who I heard called up Sen. Gramm and told him he was too soft on Sotomayor, they're just pulling at straws. If it were not for this bashing maybe Sotomayor would open up a little more but I don't blame her. She has to sit there and take it and use a little verbal ballet just to get by. I gotta hand it to her for 3 days there was nothing but aggregate compounded repetitious questions of the same thing and she responded the same....good for her!! I gotta admit I was bored out of my mind throwing my doritos chips at the screen every time Gramm, Grassely, and whatever neo-con was asking an unsubstantial question everytime. I had to turn away when the oily haired used sales car salesman from South Carolina was querying Sotomayor, what a bowl of b.s. As long as the Republicans are going to use this type of swift boat tactic were not going to get anywhere. Just to mention the only Senator that had any real queries was our funny man Sen. Al Franken, dog gonnit he's good enough for the future of the committee!!!
willia451
You are completely off base. The hearings are meaningless.
Everyone assumes that the person the President picks (whoever is President at the time) generally agrees with that President's outlook and philosophy on life, law, and politics.
Therefore, it is incumbent upon the opposition (whoever the opposition is at the time) to seek rejection of the nominee, in any way possible.
Everyone knows this.
So the nominees are coached well ahead of time to essentially say nothing. Just get through it.
Given that, again, the hearings are meaningless. They have become more about showboating personal political philosophies of the Senators themselves and enhancing their personal electability, than anything else. And trying to "trip up" the nominee to say something they can use. Either against the nominee, or for themselves.
But, its a requirement we do it. So we do it. And move on.
GPatton
She's a real hot tomale. But I didn't understand her response to Sen. Hatch's question concerning Second Amendment rights, not one word of it. George Patton
djanimaequeen
Hot tamale!? This is what I'm talking about: First you cons take the 'wise latina' statement cometely out of context with your mock outrage then the same 'good ole boys' think they can get away with terms like 'hot tamale' and all that Ricky Ricardo BS. Do you see why no one takes you hypocites seriously?
Hairball
What was the context of her statement? It seems clear but I'm open to another possibility. By the way I am so sick of the Right/Left BS arguments on here. Why can't people just make an educated statement and leave it at that. Both parties have serious faults and both are not taken seriously.
possumdearie
Iowahawk, that naughty con, had a funny bit about Sotomayer's "wise Latina" comment and the double-edged sword of identity politics and stereotypes.
This is exactly the kind of wise, precedent-faithful Latina legal approach that I believe will be welcome by others on the Supreme Court bench, all of whom bring their own unique genetic legal wisdom and instinctual empathy. Justices Roberts and Souter for example, with their aloof, sexless, constipated, emotionally-stunted WASPy intellects and natural affinity for preppy white collar criminals. Justice Stevens has this as well, along with a keen grasp for the legal issues facing Americans with senile dementia. As an Irishman, Justice Kennedy enjoys a natural "gift of the gab" and poetically tragic alcoholism. Like you, I imagine that Justice Breyer can be kind of pushy and whiny, but we should also remember that as a Jew he is probably very skilled at cases that involve complicated numbers and math. To the casual observer, it probably seems absurd to have greasy Italian "goodfellas" like Justices Alito and Scalia working inside the legal system, but if we give them a chance they may eventually break the code of Omerta and finally turn state's evidence against their Cosa Nostra bosses. Yes, many have criticized Justice Thomas for being a self-hating "Oreo" and "Uncle Tom," but I like to think that deep inside him still lurks the the DNA of an angry Cadillac-driving streetwise Superfly, ready to show "The Man" that his pimp hand is strong.
baptox
This is a degrading comment, both racial and gender stereotyping at it's worst. She is not a hot tamale. She is a rather amazing, accomplished and wise Latina woman.
Part of the Republicans' strategy to attempt to discredit Judge Sotomayor was to attempt to portray her as having a "non-judicious nature." Just as Republicans attempted to portray Michele Obama as an angry black women, Lindsey Graham attempted to paint Sonya Sotomayor as hysterical, vindictive, angry and generally emotionally unstable.
Republicans have no political ideas and so they use smear tactics and race-baiting. As the party continues to implode, the nastiness and petty tactics will increase.
Thank you.
As a first time user, your comment has been submitted for review. It can take anywhere from a few hours to a day or two for your comment to be reviewed, depending on the time of week and the volume of comments we receive.