Justices playing referees in ‘politicized’ society — Sotomayor

By Geof Koss | 08/15/2016 12:58 PM EDT

FAIRBANKS, Alaska — Supreme Court Justice Sonia Sotomayor yesterday rejected criticism that the nation’s highest court has become more politicized in recent years, saying she and her colleagues are increasingly being asked to sort out complex questions that reflect a changing and highly polarized society.

The justice took a break from her 10-day vacation in the Last Frontier State to speak for more than 90 minutes about her experiences on the court before a crowd of several thousand at an event sponsored by the University of Alaska, Fairbanks.

Asked whether the court has become more politicized, Sotomayor took a long pause and loudly blew her nose, to laughs, before answering.

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"Are we politicized or is just the country politicized?" she asked, noting that the flood of questions the court is asked to adjudicate are the byproduct of a democratic society.

"They come to us because laws are passed that affect people on issues that are important to them. And those issues, regrettably, often have social implications, but we’re forced as a court to answer the questions that we’re presented with. But it’s not because we create an issue. The society creates the issue, it creates the laws that are being challenged, it creates the situations that are being questioned. And the fact that the court has to rule on them is something that we have no choice about in the end."

Sonia Sotomayor
Supreme Court Associate Justice Sonia Sotomayor greets the audience in an overflow room yesterday before speaking to thousands at the University of Alaska, Fairbanks. | Photo by Geof Koss.

She cited a number of assisted suicide laws that states have enacted since the turn of the century as an example.

"So it’s not clear to me that the court has become politicized, it’s the society that has become politicized, and the society is involved in more social issues than it ever has before."

Her remarks came as the court continues to operate in limbo, following the death earlier this year of Justice Antonin Scalia. Despite months of pressure from Senate Democrats, Majority Leader Mitch McConnell (R-Ky.) appears unwilling to relent and allow a vote on President Obama’s nominee to replace Scalia, Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

During the event, which included questions submitted by the audience and chosen by a moderator, the 62-year-old did not mention Garland or the ongoing political standoff, except by once noting "we function best when we’re nine, by the way," to applause from the overwhelmingly sympathetic audience.

However, when asked what qualities a nominee should possess, she said the ability to be open-minded and provide serious consideration to both sides of an issue, even when an argument is "off-base," were obvious qualifications.

"I think the one that I find most useful is curiosity," she added. "You really have to be interested in the world and everything that happens in it because those are the problems that people bring to the court. Every single human interaction that runs into difficulty ends up in a courtroom. And what you’re asking judges to do is to decide issues that you have struggled with, have thought about and have driven you crazy for a period of time, and experts in the sciences and medicine and every human endeavor come to the court to ask us to answer their questions, and the only way we can do that is do we have sufficient curiosity to be constantly learning something new, and learning enough, becoming expert enough, so we don’t do any harm?"

A relaxed Sotomayor wandered the auditorium with a wireless microphone throughout the event, shaking hands with audience members and posing for photos as she answered questions from the seated moderator. Her peripatetic style is a source of consternation to her security detail, she told the audience. "The one thing you can’t do is jump up unexpectedly," Sotomayor said as she motioned to the half-dozen security agents accompanying her.

She frequently hugged individuals in the crowd, whose remarks could sometimes be heard on the justice’s microphone. "Thank you for all you’ve done," one woman said to Sotomayor.

Sotomayor steered clear of any discussion of the presidential race, after Justice Ruth Bader Ginsburg was forced to apologize last month after making disparaging remarks about Republican presidential nominee Donald Trump (Greenwire, July 14).

But she lamented the polarization of modern politics, maintaining that the justices respectfully disagree without personal offense.

"We sort of understand when there is a bitterly sarcastic dissent, it’s borne of someone’s passion about the issue. But it’s not directed at us as individuals. And that’s something that I think is missing in the American discourse today."

She added, "There’s this assumption that if someone believes in an issue differently than you do, that somehow there’s something wrong with them, something wrong with them morally or something wrong with their sense of right. I don’t actually think that. I think they are just passionate about something in a different way than I am."

Sotomayor noted that Ginsburg and Scalia occupied opposite ends of the ideological spectrum, "and they were best friends."

She drew a similar comparison between herself and conservative Justice Clarence Thomas.

"Justice Thomas and I are two worlds apart in our rulings," Sotomayor said. "And yet I admire him greatly for how he treats people and for his sense of decency for people. He’s the only justice in the courthouse who actually knows the name of every single employee, and not just their names but the names of their spouses and children."

Reflecting on her earlier years on the court, Sotomayor said part of the job is getting to know the other judges not just on a personal level, but also "what moves each justice."

"What are the questions that are most important to him? What are the arguments that might resonate with changing their minds? And so you get to work together in a way that you understand each other and what drives each other."

That process inevitably leads to conflict but also cements relationships, she said.

"Justice Scalia one day said, ‘Sonia, you’re just like a bulldog. You get a bone in your mouth, and you just don’t ever stop chewing it,’" she recalled. "He was talking about my trying to talk him into something. And I looked at him, and I said, ‘Nino, I take that as a compliment.’ He said, ‘I thought you should because I’m a bulldog, too.’"

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