July 13, 2009

Sotomayor’s Curious Opening Remarks

In her otherwise bland opening remarks, Judge Sotomayor made a couple of interesting statements:

1) “I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected.”

Shouldn’t setting out what the law requires be the end of the analysis? When would it be okay for her to rule “contrary” to what the law requires? I’d conclude that she misspoke, but these are prepared remarks, so I’m not sure.

2) “I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent.”

It’s probably no accident that she mentions intent with regard to statutory interpretation but not constitutional interpretation. It would appear that she sees no room for originalist arguments when it comes to the latter.

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