Judging the Judge

I am increasingly sickened by the political rhetoric regarding Judge Sotomayor as exploited by the shallow, histrionic “news” media. The latest “reporting” and “analysis” of two comments by Judge Sotomayor is ridiculous in emphasis and baseless in relevance. Judge Sotomayor has some thirty years of public service as an attorney in varied roles. She has through those years openly presented herself, her integrity, her competence, her judgment, her self-control, her intelligence, and her grasp of the law. As an assistant district attorney she made judgment calls on who would be prosecuted and what charges they would face. In the prosecution of these cases her character, demeanor and integrity were open to the scrutiny of the public, the defense bar, the media and the judges before who the cases were tried. In private practice the scrutiny continued by the courts, the New York Bar Association, her clients and, at times again, the public. Sitting as a federal District Court judge, her personal character and grasp of the law would have manifest itself repeatedly in the relatively fast paced, pressure filled dynamic of public trials. As a federal appellate judge her written opinions over the years provide another opportunity for reasoned analysis of her record. I do not know what will surface as the result of the now commencing political process but I do know that it is utterly preposterous to extract two sentences out the context of her career to rationally conclude anything of relevance.

In one of these statements she spoke of the difference in the functions of a trial court from those of the appellate courts. Trial courts deal with the facts and the applicable law in a unique circumstance. In her comment she explicitly referred to the law as “percolating” through the federal appellate courts. She did not suggest that it was a responsibility of any court to “make new law.” Judge Sotomayor correctly referred to policy formulation as a function of appellate courts. Appellate courts put form to the law in response to changed conditions and clarify and/or apply existing precedent to new factual situations, all of which impact cases and situations outside the particular case being decided.

Her second comment at issue seemed to suggest that a person of varied, life experience might make a better judge then one of limited life experience. I agree. Of course, personal experience must be coupled with other qualities, such as, a deep sense of fairness, intelligence capable of understanding legal concepts, and a self-controlled demeanor all hopefully underlying a confident wisdom. Many judges, though there are exceptions, however have risen to that position in a social and professional context dominated by “good old boys” of strikingly similar backgrounds. In my thirty years as an attorney I have found it more the exception than the rule that existing judicial selection processes elevate a man or woman to the bench personally and professionally suited to the task. The search for truth in a trial court and the desire for justice in all courts are played out in crucibles where human emotions, tragedies, ambitions, dreams and expectations are compressed into a formal, legal form. A judge of limited exposure to and appreciation for the realities of life is less likely to correctly or adequately evaluate the facts of the case. The stamping of legal principles unto formless facts of a case would be a relatively easy process for most competent attorneys. Bringing Justice to the process requires a judge of substantive human and legal capacity.