Tuesday, October 20, 2009

Sonia Sotomayor, a Gentle Giant

My 20th law school reunion was wonderful (much to my surprise). Seeing old friends (not enough of them), meeting new friends (not enough of them either), communing with cousins (not enough time) and having the chance to be in this photo. Taken by Bill Eskridge, now on the YLS faculty. It was an awesome weekend. To say the least.

Sonia Sotomayor will grow into being a great Supreme Court justice. For two reasons.
One, she is as solid and constant as a lava flow coming out of a volcano. She simply rises to a level of discourse that is complete, creative, funny, touching, thorough going, brilliant, human, and filled with the gentle self awareness that a grownup has. These qualities give her great, great strength and breadth.

Second, she is an intentionalist. There are two kinds of justices (three if you count the practical centrists, but they aren't really interpreting the laws or constitution, but finding a good middle ground, more equity than law (O'Connor). Scalia, Thomas, Alito and Roberts are literalists. They focus on the text, on the words, on the grammar, on some mysterious concept of "the law," as written in ever more limiting words. Intentionalists, like Breyer and Ginsberg, ask what was the intent of the law, what is it there for, what is its purpose. Breyer has a wonderful, slim, easily readable book, Active Liberty, that lays out in clear terms what an intentionalist does to interpret the law and the constitution. Sotomayor always asks what is this law trying to do. (Look also to Peter Gomes' "The Good Book" about how to read the Bible.)

During an hour long colloquy with the YLS alums and larger school family, she told some telling stories. One was that in her visits to senators before her confirmation hearings, she learned more about them and their concerns than she thinks they learned about her. She talked of her great appreciation of what is on the minds of people all around the country. She is open to the diversity of humankind. Another phrase was "grand clerks" which refers to the children of her clerks. She said, "while I don't have an birth children," I have lots of children in my life, my grand clerks, my god children and lots of others. A lovely way of phrasing it and revealing someone who is interested in others, not just in articulating what she thinks.

She will pave a very wide swath through this area of utmost importance to our country. A number of people have said that she will be more conservative than I think or would want. I don't really care. The actual outcomes are often a lot less important than the general direction of an opinion. She will push toward a more humanistic view of the law and its role in human lives. And, intentionalists, like liberals, always come out ahead, in the end. History is written, by and large, by them.

We are so lucky, once again!