Among the treasure trove of speeches and writings by Supreme Court nominee Sonia Sotomayor released Thursday by the Senate Judiciary Committee, one talk she gave in 2000 to the Litigators Club in New York stands out as an interesting appraisal of the differences between her then-new job on the U.S. Court of Appeals for the 2nd Circuit and her prior position as a U.S. District Court judge in New York. The club is a lawyers' organization that meets periodically to hear from federal and state judges.
Her speech also offers further insight into what she may have meant in 2005 when she made the now-controversial statement at Duke University that appeals courts are "where policy is made." In the 2000 speech, Sotomayor said one of the aspects of appellate judging that she has had to consider is that "our decisions affect not only the individual cases before us, but the course of litigation and the outcome of the many similar cases pending or to come. This fact has made me much more aware of the policy impact of the decisions I have drafted or worked on." She added that if, after drafting a decision, she realizes that its impact on future cases would go beyond the language of a statute or its legislative history or purpose, "then the analysis will have to be reexamined and either abandoned or narrowed further."
When she gave the speech in November 2000, she had been on the appeals bench for about two years. She described her previous six-year stint as a trial judge as a frenzied, somewhat chaotic experience. "Time to think on pending motions and to draft opinions must be wrestled away from the general cacophony of sounds and other demands on an always busy trial court," she said.
By contrast, appellate judges have "much more active control over their dockets," making life "seem more focused and calm." At the 2nd Circuit, she said judges hear arguments approximately 42 days per year, giving lawyers a chance "to argue the finer points of their positions and answer our sometimes grueling questions."
Sotomayor also described appellate judging as a somewhat solitary job, with far less contact with parties than she had as a trial judge. "If the price of this stability is contact with the outside world, then the gain is that we are given the freedom to give a more focused, a more refined, and a more penetrating look into the legal issues before us." That time, she added, "allows us to obtain much greater confidence that our holdings square with existing precedent, with Supreme Court and Second Circuit jurisprudence, and with good common sense."
Up to that point, Sotomayor said "it is too early to tell" whether she liked her former or current job better. But, she said, "I am certain of one thing. I am very grateful to have received twice the ultimate gift given to me -- that of having the best job in the world, being an Article III judge."
Is it not the job of the Appellate court to follow and "square" with the Supreme Court and the relevant Circuit Court?? Ms. Roberts' comment suggests that it is also part of the appellate judge's job to disregard the precedent laid down by the Supreme Court if that particular judge has a different interpretation of the Constitution. Some factions might call that "an activist judge." No, I must disagree with Ms. Roberts and respectfully suggest that following precedent is perhaps the most important and fundamental role of the appellate-level judges. If they believe that the law, whether statutory or caselaw, requires some change, then the judge is free to editorialize within his or her Opinion, urging the Supreme Court to make the change.
Posted by: Terrance G. Lohr, Esq. | June 08, 2009 at 01:55 PM
"......allows us to obtain much greater confidence that our holdings square with existing precedent, with Supreme Court and Second Circuit jurisprudence, and with good common sense."
Why does she not say "square with the Constitution? Precedent can be wrong. Humans make mistakes. Decisions should be made with the "Constitution" as the "squaring" tool. I am very bothered by this tradition of precedent.
Posted by: Lynne Roberts | June 05, 2009 at 04:48 PM