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Sotomayor in 2004…on Judicial Activism, Separation of Powers, Detainee Rights

Morgen on June 2, 2009 at 1:51 pm

Update (6/4): Sotomayor turned in her Senate Judiciary Questionnaire today…and did not include the text of her comments linked below to the Judiciary Committee. I posted some brief comments on this today (I don’t think it was intentional). Thanks Hot Air for the link!

Here is a quick link to the 2004 comments she lost or omitted.

CLIFF NOTES version: she is essentially lamenting that Congress had reigned in the power of Federal Courts to assume jurisdiction in certain type of cases, and in doing so is questioning established law and precedent. Towards the end she laments (to other judges) that “we have to live with…that the Congress decides what rights to give”. But pulls it back midstream and says that this was a “complete misstatement” because this is “part of our Constitutional structure”.

In 2004, at the Annual Conference of the American Constitution Society (ACS), Judge Sotomayor participated in a panel discussion on “The Future of Judicial Review: The View From The Bench”. There were six panelists, all judges of some renown, and they were asked to respond to the following questions from the moderator (a Senior Fellow from the liberal Center for American Progress):

So these are the three questions that we’d like to talk about today. At this remarkable time in our nation’s history, what are the greatest challenges to our Constitutional heritage? Are those challenges all substantive in nature or are some structural or access related? And after Brown, Fifth Circuit Judges like John Minor Wisdom and Frank Johnson performed heroic tasks in steadfastly enforcing the Brown decision. Where are the places for judicial heroics today? (Ed. emphasis added)

I am going to quote some of Judge Sotomayor’s response below but her comments were relatively brief and I really encourage you to read them in full HERE. (Update: this post turned out to be really long, so I limited the amount I quote below…please read her full comments, it’s only 2 pages. Unfortunately video does not appear to be available).

Now I have to say that I find some of the points that Judge Sotomayor was trying to make a little incoherent, even after multiple re-readings. So let me first provide some additional context and then I will provide some commentary and food for thought at the end. As always, I look forward to the further dissemination and discussion of this by other blogs and commentators (if anyone else considers this to be significant).


Judge Sotomayor, and the other panelists, were responding in part to a “challenge” given by a Judge Guido Calabresi at the prior year’s ACS Conference on a panel discussion entitled “Judging in a Conservative Era”. Judge Calabresi apparently was quite impassioned in challenging his fellow members of the judiciary to stand up against what he deemed a “radically right wing” political and legislative agenda. While he seemed to be primarily referring to War on Terror related legislation and Executive action (Patriot Act, Guantanamo, etc.), he also broadened  his accusations against the “right” to include “revers[ing] the New Deal” and “creat[ing] a Constitutional right to discriminate”. He closed with a rousing (mis)quotation of James Madison in challenging the judges in attendance to stand-up against the law-making and enforcing powers of Congress and the Executive Branch:

“if you write them, if you do them, if you put them in, courts will be impenetrable bulwarks against any infringements on the rights of the people.” That’s what we should do in a radical right life. (emphasis added)

(Full transcript of the panel discussion from the prior year available on the internet archive HERE.)

So this “challenge” by Judge Calabresi is what Judge Sotomayor was referring to when she said:

And I think that was Judge Calabresi’s challenge, which is, in a Democracy, it often isn’t – or in a common law, I shouldn’t say in a Democracy – in a common law setting, it often isn’t enough to rely on sentiment undoing precedent, and we’ll find out how dangerous that unrejected precedent remains. I hope I’m wrong and I hope you’re right.

The latter part of her statement was referring to comments made by a prior speaker, Judge Abner Mikva, regarding a pending terrorist detainee case (Rumsfeld v. Padilla) before the Supreme Court. Judge Mikva had expressed hope that the Padilla decision, expected soon, would be a “beacon of what are the rights of citizens”. Judge Sotomayor did not share his optimism on what the outcome of this case would be (though she seemed to share his opinion on the desired outcome).

Moving on, Judge Sotomayor in making her central argument about the infringement of the role of the judiciary by the other branches of government, referred to something called the “AEDPA”. The AEDPA is the Antiterrorism and Effective Death Penalty Act of 1996, which was bi-partisan legislation from the Clinton-era. Here is a good description of the AEDPA from the SCOTUS blog:

[The AEDPA] was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.” (That is 28 U.S.C. 2254-d-1.)

In her comments, Judge Sotomayor was clearly taking a position that the AEDPA infringes on the power of federal courts to grant jurisdiction to petitioners in State criminal actions. The AEDPA was upheld by the Supreme Court soon after it was enacted, and has not been seriously challenged since.

Judge Sotomayor also mentioned a couple of other SCOTUS cases in making her point that the balance of power had shifted in favor of the other branches of government – Chevron and “Greer” (it’s actually Geier). I won’t comment on these other than to say that they were important precedential cases decided by the Supreme Court which recognized the power of the Executive and Legislative branches in defining, regulating, and administering law.


1. I think what I find most noteworthy about all of this is the degree to which she expressed a very strong negative opinion about established law and Supreme Court precedent, with respect to the AEDPA, Chevron, and Grier. She referred to the effect of the AEDPA on the judiciary as “really radical” and a “vastly revolutionary idea”. In this day and age when SCOTUS nominees are generally reluctant to express strong opinions about anything, it’s pretty insightful to look back in time and see this strong sort of commentary. It is also possible of course, that the AEDPA or similar legislation could come before the Supreme Court for review.

2. To a slightly lesser extent, she also implied a pretty strong position in opposition to the War on Terror detainee policies started under the Bush administration (and continued under Obama). In assuming that these policies would be upheld by the Supreme Court, she referred to this as “dangerous…unrejected precedent”. Given that the Supreme Court has subsequently reversed some of the Bush Administration policies on detainee rights (e.g. providing habeus rights to detainees), it would be interesting to know her current views given what she had to say about this in 2004. And of course, it is very possible that additional cases regarding detainee rights could come before the Court in future years.

3. Inherent in points #1 and #2 of course, Judge Sotomayor seemed to be expressing a very strong feeling of disdain for the current balance of power between the judicial branch and the other branches of government. I would think members of Congress and the Senate Judiciary Committee would take particular interest in her comments about how they are “limiting and cabining” the judiciary. This was actually the overriding point of her commentary.

4. This point is slightly more subtle, but when answering the direct question from the moderator Judge Sotomayor said that she saw “the greatest challenge to our Constitutional system as the very point that David, you raised, as the failure of critics of judicial action.” Judge David Tatel used the bulk of his commentary to quote politicians over the past 100 years, on both sides of the political spectrum, who had railed against “judicial activism” on the part of the judiciary. Judge Tatel’s point, to which Sotomayor seemed to be in agreement, was that the real, “insidious” agenda of those who claim “judicial activism” is to limit the power of the judiciary. So I believe Judge Sotomayor was saying that the “greatest challenge to our Constitutional system” was that these criticisms must fail to have any impact. Considering that there are Senators on both sides of the aisle who have spoken out against judicial activism, it would be interesting to see Judge Sotomayor questioned on this during her confirmation hearing.

5. I would be remiss if I did not point out that on a couple of occasions within her very brief comments Judge Sotomayor immediately walked-back a statement or phrase she had just used. The first of these was towards the beginning when she started to make a comment about “Democracy”, but then immediately revised “Democracy” to “a common law setting”. The other walk-back was at the end where she said that “we will have to live with…that the Congress decides what rights to give”, but interjects in the middle of this statement that the phrase “live with” was a “complete misstatement” because this is part of our “Constitutional structure”.

I find the initial revision a little confusing…in fact that entire sentence seems a little incoherent. But with the latter case, it sure seems to me that she was lamenting the fact that Congress has the power to make law and that as judges they have to “live with it”. And then mid-stream she realized that this was a pretty strong statement to make and tried to moderate it (unsuccessfully, I think). Just to emphasize, I think the earlier points are more significant, but considering the other well-known cases where she said something only to regret it immediately afterwards…or 8 years later…I thought this was note-able.

6. Lastly, I’d love to see the Judge questioned on the idea of “judicial heroism” and whether this is an appropriate focus or description of the role that the judiciary plays. I also find it somewhere between interesting and strange that she seemed to substitute the word “mythology” for “methodology” on a couple of occasions. My only thought on this is that she was probably very accustomed to speaking about judicial activism as “mythology” and mixed up her words.

Sorry for the monster post. I thought it was important to provide some additional context. None of her statements were outrageous on their face, but as I’ve outlined above I think they may provide some additional fodder for review during the confirmation process.

John Adds: I read her comments this morning. The part I found most interesting was this:

At the very core of the discussions that are happening around all the great social issues we’re facing is really a discussion about methodology. How do we, as judges, interpret the law?

And what is happening, is that this discussion is not occurring just among ourselves as judges. It’s not merely the Supreme Court deciding whether it’s going to follow original meaning, original intent, or more progressive historical evolution. But we have the executive and legislative branches participating very directly in that discussion, and limiting and cabining the judicial evolution of those concepts.


But this is how Congress has slipped into this debate now, and changed it from a mere attack of judicial activism based on outcome, and now more directly influencing that outcome by taking over the [methodology] that we as the judiciary are using in interpreting the meaning of law. And, to me, that is the greatest challenge.

And, perhaps…in talking about the challenge and the heroics of judges today, it may well be in protecting our own turf and ensuring that it is we who interpret the law, and that we understand that that is part of the constitutional scheme.

At first glance, this appears to be a simple statement about the Constitutional separation of powers; however, Sotomayor is saying this specifically in relation to judicial activism. But, in my mind at least, the very concept of judicial activism entails the idea that the court is acting as a kind of unelected, supra-legislature (something which would understandably concern the actual elected and Constitutionally empowered legislature).

In other words, Sotomayor is arguing that even if the judiciary violates the Constitutional separation of powers, the legislature dare not intervene for fear of violating the Constitutional separation of powers. Is this the kind of penetrating insight we can expect from her on the Supreme Court?

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