Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The non-partisan Congressional Research Service has issued a report (PDF) on Judge Sotomayor's record that reaches the same conclusion I did after reading through a few dozen of her written opinions -- that far from being some ultra-liberal judicial activist she is a moderate, middle of the road, careful judge who adheres closely to precedent.
"As a group, the opinions belie easy categorization along any ideological spectrum. Perhaps the most consistent characteristic of Judge Sotomayor's approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role."
The report says that Sotomayor exhibits "a meticulous evaluation of the particular facts at issue in a case, which may inform whether past judicial precedents from the circuit are applicable. Her approach to statutory interpretation seems similarly nuanced." In that regard, they say, Sotomayor's approach "would be in line with the judicial philosophy of Justice Souter."
While this obviously conflicts with the image of Sotomayor as a fire-breathing radical that the right wing is busily trying to portray to their followers in order to scare them into donating money, it really isn't what I'm looking for in a Supreme Court justice. This is where I tend to find the approach of Scalia and Thomas appealing even while disagreeing with how they implement that approach.
That is, I like bold stands. I want a judicial bomb thrower like Scalia and Thomas, I just want them to throw the bombs in the other direction most of the time. I don't want a careful incrementalist or a split-the-baby O'Connor-style justice, I want someone with a bold vision of the constitution that is in clear conflict with the vision offered by the conservatives on the court and with the ability to assert that vision as bluntly as they do. I want a liberal Scalia on the court. Sotomayor is not that person, not by a longshot.
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So, who would your pick be, Ed? Not who Obama might have picked, but Presient Brayton's nomination, with 60 plus senators willing to back you up.
Posted by: Hellocthulu | July 1, 2009 9:52 AM
I think it would not be entirely wise to evaluate Judge Sotomayor, based on the fact that, as an appellate court judge, she upholds precedent. That's what an appellate judge is supposed to do. That doesn't necessarily mean that she will uphold precedent as a Supreme Court Justice necessarily. It sometimes happens that Supreme Court Justices sometimes deviate from their previous records. Just to name three examples, Hugo Black, Harry Blackmun, and Felix Frankfurter
Posted by: SLC | July 1, 2009 10:13 AM
Hellocthulu wrote:
The last clause limits things a lot. Who would I pick, period? Who do I think is the best person for the job? Randy Barnett. But he wouldn't have a prayer of being confirmed by either party.
Who would I have picked that would have been confirmed? Diane Wood.
Posted by: Ed Brayton | July 1, 2009 10:26 AM
Ed, I think Hellocthulu is asking you to pretend you have 60 senators who will back anyone you pick. So confirmation is guaranteed.
[Jumps up and down, waving excitedly] Pick me! Pick me! I may not make the best SC justice. But after a year of having to work with me I bet there would be a couple seats held by conservatives opening up. Thomas already hates me for giving his wife a nervous breakdown.
Posted by: Abby Normal | July 1, 2009 10:43 AM
Hellocthulu raises a fun question. If I'm the President and I've got 60 Senate votes? Jack Balkin is my pick. Not a bomb thrower by any stretch, but for my money, one of the top 5 legal minds in the country.
Posted by: Dan | July 1, 2009 1:11 PM
I would be more than happy to see Jack Balkin on the court. Or Akhil Amar, his colleague at Yale Law School.
Posted by: Ed Brayton | July 1, 2009 3:09 PM
My choice in the pick a SCJ is simple -- since Justices don't need to be primarily lawyers. I want to see someone who is scrupulously honest, knowledgeable in the law, fair, shares my concern for areas such as church state separation, teaching of evolution, freedom of speech, etc.
I want him or her young enough to have a long career, congenial enough to use that skill to build majorities, and fierce in his beliefs.
Anybody got a better choice than Ed Brayton? And I mean that perfectly seriously.
As for Sotomayor, she reminds me of Harlan Fiske Stone, a solid legal technician who is not ideological, but whose attitude towards the law will put her on the right side almost every time. (Legal reality too has a liberal bias.)
As for a bombthrower, not this time -- and not until there is an opening on the right side of the bench. Obama's choice did more to hurt the Republicans than anyone else, because they only could attack her on ethnic grouns. Next time maybe a Diane Wood.
Posted by: Prup (aka Jim Benton) | July 1, 2009 5:25 PM
that far from being some ultra-liberal judicial activist she is a moderate, middle of the road, careful judge who adheres closely to precedent.
Didn't you hear? "Moderate" is the new "ultra-liberal judicial activist".
Posted by: Modusoperandi | July 3, 2009 4:04 AM
that far from being some ultra-liberal judicial activist she is a moderate, middle of the road, careful judge who adheres closely to precedent.
Didn't you hear? "Moderate" is the new "ultra-liberal judicial activist".
Posted by: Modusoperandi | July 3, 2009 4:04 AM