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Judging Sotomayor Poorly

5065717As the first week of June closes, conventional wisdom in the media centers of New York and Washington has sadly coalesced around the notion that the hot new angle in the Sonia Sotomayor nomination story is the news that her controversial "wise Latina" comments were not a one-time, off-handed remark after all. This is inside-baseball, Beltway-centric reporting at its worst and it does a great disservice to news consumers who are trying to make qualitative judgments about the woman who is likely to become the next Justice of the United States Supreme Court.

Instead of focusing upon the substance of her rulings, listed on no fewer than 130 single-spaced pages in an appendix to the Sotomayor questionnaire, too many of my colleagues in the media are instead salivating over old speeches that prove little more than the fact that the judge has been remarkably consistent over two decades in the narrative she has chosen to describe her life, her profession, and her aspirations toward law and justice, real and perceived.

Do these comments tell us how she'll rule on abortion or the death penalty or same-sex marriage or the environment? Of course not.

For those answers we must go naturally to the best evidence we have. And it's not like it isn't staring us in the face. Judge Sotomayor has written hundreds of opinions and has voted in hundreds more cases in her nearly two decades on the bench. They are all listed in the documents submitted Thursday to the Senate Judiciary Committee.

Think Judge Sotomayor's a "liberal, judicial activist"? Then explain the "conservative" decisions she chose to list in her questionnaire as the "most significant" of her career. Think she's soft on crime? Then explain the Wall Street Journal's strong piece Friday about how Judge Sotomayor appears to be firmly to the right of the man she will likely replace—David H. Souter—when it comes to matters of criminal procedure.

Driven by dark, cynical political forces that ooze into public view whenever there is a Supreme Court vacancy, the media have given us way too much "wise Latina" and way too little substantive analysis of the vast reservoir of "best evidence" we have about her legal philosophy.

Just you watch. This weekend we are going to hear relentlessly about how the White House was caught in a "gotcha" because officials there suggested that the judge's remarks were a one-shot thing. But we aren't going to hear nearly enough about those rulings in which Judge Sotomayor protected parole officers against unwelcome litigation, or the government on appeal by a sex offender, or the government's restrictive immigration policies.

And what's also missing from coverage of the Sotomayor questionnaire release is the acknowledgement (widely-accepted in the law) that there can be, and often is, a vast gulf between a judge's jurisprudence from the bench and his or her own judicial philosophies on the lecture circuit.

Anyone who has seen Justice Antonin Scalia speak recently can attest to the fact that he is far more aggressive and controversial in his public remarks than he is when deciding cases. Yet the very same people who embrace Scalia's candor are attacking Sotomayor for her own forays into hard truths. Good or bad, Scalia deserves to be judged on his in-court record. So does Sotomayor. I have yet to hear or read or see that point made.

I don't mean to suggest that Judge Sotomayor's comments on the rubber-chicken circuit are purely small beer. They aren't. The judge will have to explain before the Senate Judiciary Committee what she means (and has meant for all these years) and how she believes she has been able since 1992 to separate out her so-called trash talk in speeches from her much more reserved written opinions from the bench. For example, I would like to know what she meant in 1994 when she said that she wonders "whether achieving the goal [of complete judicial neutrality without gender bias] is possible in all, or even most cases, and I wonder whether by ignoring our differences as women, men, or even people of color, we do a disservice both to the law and society."

I'm certainly not willing to try to explain that comment for her -- and the White House shouldn't, either. From reading scores of her speeches and rulings, I am quite certain that she is quite capable of explaining her own words in her own words -- and to the satisfaction of her temporary judges in the Senate. Some call her views candid. Others call it apostasy to the religion of judging. Whatever they are, however, and whatever they mean, those comments are patently the most indirect way for us to answer the only question that really matters here: what kind of a Justice will she be?

I submit that Judge Sotomayor's past decisions, and they alone, are the best indicator of her future jurisprudence. In other words, I care less about what she says to some bar association somewhere and more about what she writes when someone's life, liberty or property are on the line.

If you judge the Judge that way, I suspect you'll conclude as well that she's placed herself squarely on the fairway of modern American legal thought. That this comforting notion doesn't make good copy these days doesn't mean that it isn't the truth.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.
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