Legal Commentary

Let me start with the obvious conclusion that anyone would draw if they were to get to know Judge Sotomayor and her work both intimately and deeply: she is an absolutely brilliant jurist and an absolutely brilliant person.  Having clerked for her, worked very closely with her over the course of a year, and then known her well for more than a decade, I have a very good take on who she is both as a judge and as a person.  Ordinarily, I would not weigh in on things like this, but, given some of the spurious comments that have been emerging from people who are less familiar with her, I feel a need to set the record straight.

I count myself privileged to have worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan?s graduate school, which was widely considered the best department in ethics in the world when I was there.)  Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter.  (Others who have stood out in this way in my experience would include Harold Koh, the former dean of Yale Law School, and Peter Railton, a moral philosopher at the University of Michigan.)  Judge Sotomayor is much smarter than most people in the legal academy, and much smarter than most judges who are granted almost universal deference in situations like this.  And while I have worked with numerous people who are thought of as some of the best minds in the nation, and about whom the question of brilliance would never even arise, most of them are?quite frankly?pedantic in comparison. 

Indeed, Judge Sotomayor reminds me in some ways of Obama himself in that she has surprising dimensions to her brilliance, which are completely original to her.  She knows how to pull out the best in people with whom she works, how to motivate people through her words and conduct, and how to forge deep and abiding relationships with people from all walks of life, and from all political stripes and ideologies.  She is courageous and fearless, but non-ideological, and wholly unimpressed by the kind of pomp and false theoretical excess that can sometimes make one look smarter in the short term but only at the expense of distorting the underlying issues.  One measure of the extraordinary judgment she has is reflected in her incredible life story: she moved unerringly, and without any hint of doubt or hesitation, from the Bronxdale Public Housing Projects to graduating summa cum laude from  Princeton, where she received the Pynes Prize (for their top graduate), and then to Yale Law School, the DA?s office, and the Second Circuit Court of Appeals.  The force of character that it takes to live such a life should never be underestimated: we have no other person on the bench with her experience and intellect who has come from these beginnings and who has developed with such clarity of purpose and vision.  The federal judiciary houses a number of intellectual giants, but, if we are honest with ourselves, we will have to admit that almost none of them would have made it to where they are from her starting point.  The temptations to take other paths would have been far too strong, and the absence of hope too stultifying.  Because of this, she also has the power to lift people up, and inspire.  Her story can bring unique hope to many for whom there is only despair; can help heal some of the deepest internal crises of faith that people struggling in this country have had to face; and can establish the fact (about which there is still far too much unwarranted skepticism) that brilliance comes in many surprising forms.  She can also give a concrete face to the American promise, and what we stand for as a country, and to the kind of change that will bring us directly back to our core human values.

Like Obama, there is thus something special and incomparable about this woman?though it lies in qualities that are not always seen by those who do not know just where to look.  In my view, the level of conviction and independence of mind that Judge Sotomayor displays is absolutely essential to the best work of a Supreme Court Justice, but it is in short demand, and rarely have we seen it on such full display in the federal judiciary. 

Given these facts, I should probably be less surprised than I am to see some of the initial reactions to Judge Sotomayor mirroring early reactions to Obama?s presidential candidacy.  Early in the last primary season, I remember a number of people saying that Obama was not ?as smart? as Hillary Clinton?at least until people began to catch onto his sheer genius at things like (1) reframing seemingly intractable issues in ways that might move us forward and out of stale debates; (2) identifying and articulating the core values of social practices in ways in ways that people who were once skeptical find compelling; (3) charitably understanding the fullest range of seemingly diverse positions, and the kinds of concerns and warranted hopes that lead to their articulation; and (4) maintaining humility, and a sense of calm and perseverance, in the face of seemingly insurmountable difficulties.  (These are rare forms of brilliance, which Judge Sotomayor also has in spades?but that very few on the federal judiciary can claim for themselves.  They are also not qualities that one will typically see if one is a law clerk for another judge who receives suggested revisions on one?s work from another judge; or if one is an attorney, who is less than prepared before a judge who has particularly exacting standards of excellence.)  I also remember a number of people talking about how Obama rubbed senior colleagues in Congress the wrong way, when he?like Judge Sotomayor?displayed his native brilliance from the very start of his tenure in some ways that others found unsettling.  And I remember how some on the left expressed concern when Obama began to break the mold of democratic thinking, by drawing on his independent but genuine insights into how people work and mobilize in socially productive ways not only in urban but also in rural settings, to help push our collective thinking on matters of genuine importance.  I will confess that I myself did not see the full range of Obama?s brilliance at first, and that these things only began to become clearer to me after hearing his speech in Iowa and after Ted Kennedy came out letting people know that there is something special about the man.  But whereas Obama had an extended campaign period in which to introduce himself to people, and to overcome some of the difficult but inevitable first impressions that arise with brilliance in this form, Judge Sotomayor is being maligned by people who do not know her, and who may not be able to see of all of her qualities from afar.  I am?of course?no Ted Kennedy, but I do know what Senator Kennedy was talking about with regard to Obama, and I see special qualities of precisely this caliber not only in Obama but also in Judge Sotomayor.

I suspect that some people on the left may be concerned about Judge Sotomayor because she may not be the ?liberal antidote to Justice Scalia? that some have desired.  But this is no indictment of her intelligence, but rather of their imagination.  Getting at the truth in the law, and beginning to change the tone on the Court, will not involve concocting a distinct but overly general, and ultimately erroneous, theory of how things like meaning or interpretation work to counter Justice Scalia?s.  Nor will it involve the development of ideas, or forms of expression, that increase the mutual sense of alienation and resentment among Americans in both parties toward one another.  In my view, the standard liberal expectations for a great jurist are thus behind the times in many ways, and it is a testament to Judge Sotomayor that she would much more likely break the mold for such expectations and bring us all forward in the process.  The time for endless tit-for-tats on the Court, as in politics, is coming to an end, and Judge Sotomayor would be the ideal justice to help move the Court into a newer, saner, more thoughtful, and more unified era.  Indeed, she is perhaps uniquely qualified to do so. 

To give you a sense of what I mean by some of the rare dimensions to Judge Sotomayor?s brilliance, let me quote several passages of a description I once wrote up of her in 2002, which begin to capture some of the social, emotional, and procedural brilliance that she has.  After describing the judge?s tireless work ethic, and the sheer quantity of work she was able to produce, I wrote: ?The ultimate secret of the judge?s success lay not in the quantity, however, but rather in the quality of the work she inspired. The judge made it positively enjoyable to struggle to reach better legal resolutions together, due to another rare and surprising dimension to her brilliance.  Although we had come to the clerkship with very different backgrounds, strengths, and temperaments, the judge seemed to identify them almost immediately, to cultivate them and to create an atmosphere in which we each felt respected and as though we had something positive to contribute, coming from our own particular angle.  We were some of the strangest of bedfellows, but the judge orchestrated an environment in which we all forged very real and lasting friendships with one another and felt comfortable deliberating with one another and engaging with one another?s ideas.  We discussed each and every case with genuine vigor and concern that year, and the judge?s confidence gave us the confidence to push and develop one another?s thoughts to their limits.  Have no doubt: the judge knew when to take the lead and when to rein us in.  But she also helped us to see that we could have important ideas that, with the appropriate development, would help to push the envelope of the law and help clarify or harmonize legal doctrines in beneficial ways.  The judge thereby taught us the brilliance that goes with creating an environment in which deliberation is free from insecurity, and reasoning is vibrant and sincere.  The judge also showed us how valuable such a process can be, and how much it can add to one?s ability to perceive better, more probing and more honest answers to legal questions.  With regard to her peers on the Court, the judge took the same basic approach, both at oral argument and in her interoffice correspondences.  She thereby enlivened and enriched the tenor of the deliberations of the Court more generally.  This is, without doubt, one highly tangible and pervasive way in which the judge?s presence has already changed the Second Circuit Court of Appeals, and has helped produce a better jurisprudence within the Circuit.?

I then continued: ?The judge?s ability to bring out and draw upon the best in others and her confidence and perseverance are not ultimately unrelated qualities in her.  It is the judge?s confidence that allows her never to be afraid or jealous of a thought that can help improve her reasoning or her views on things; and it is, in turn, her ability to identify and nourish such thinking, and to listen to sincere challenges to her own thinking, that allows her confidence to hit its mark and track the truth so unerringly.  The judge is, in fact, extraordinarily generous in her crediting of others.  During her induction speech for the Court of Appeals, in a room filled with senators, federal judges and other persons of relative power and social status, the judge went to great lengths to thank not only President Clinton, the senators, her peers and her legal mentors for helping her attain her numerous judicial accomplishments but also, in equal detail, the fed cap employees who had kept the hallways and chambers clean, the cafeteria staff, the security officers who had watched the doors to the courthouse and the numerous other persons who were part of the vast web of relations upon which her work had in fact depended from day to day.  She was not afraid to acknowledge the genuine role that each person had played in allowing her to succeed as a judge, regardless of the person?s perceived standing in the room, and her heartfelt expressions of gratitude had the power to motivate.  The judge also spoke of her mother, and of how her mother had worked extra hours as a nurse in a methadone clinic to save up enough money to buy the judge and her brother the one set of Encyclopedia Britannicas in the Bronxdale Public Housing Projects, where the judge had been raised; the judge spoke of her committed and lasting friendship with Theresa, her secretary, who has enriched all of our lives and has helped cement all of our relations with one another; and the judge spoke of family and love, including that of her mother for the man her mother would marry that night.  Anyone seeing the amount of goodwill toward the judge that filled that room, arising from every type of person with every type of background, could not help but get a sense of the very real power that the judge had invoked through her sheer force of character.  One began to get the sense that, without even trying, the judge had created and could move a small but silent army.  What makes the judge?s courage really shine, then, is that it involves the courage not only to express views that are worthy of consideration but also to listen, to be open to reason and to validate and acknowledge contributions that others can make to her own development and thinking.  We are all better for having a person with her type of character in a position of power.?   

Lastly, but importantly, Judge Sotomayor is a genuinely good person, with an enormous heart.  She is incredibly skilled on levels that push every imaginable envelope, and I really do hope that people will get to know who she is before taking the easy route of discrediting that which they do not yet understand. 

Professor Kar is a Professor of Law and Philosophy, and the Thomas Mengler Faculty Scholar, at the University of Illinois in Urbana-Champaign, beginning in the Fall of 2009.