Supreme Court Justice-designee Sonia Sotomayor has made at least one visit to Minnesota. Even though it was in June (for three days, last year), she brought warm clothes.
At least that’s the recollection of U.S. District Judge John Tunheim of Minneapolis, her host for the trip. But Tunheim said he may be to blame because the invitation he sent to his judicial colleagues (for a conference at Madden’s Resort in Brainerd) featured pictures of ice-fishing. Apparently he forgot to specify that the ice-fishing season is over by June, most years.
Tunheim has become friends with Sotomayor over the past five years as they’ve served together on a committee of the U.S. Judicial Conference (the last four years under Tunheim’s chairmanship, which is why he was able to drag the judges from around the country to Brainerd).
Sotomayor, whom he first knew as “a diligent committee member and a real team player” has become “a good friend,” Tunheim said.
Since Tunheim knows the nominee, I dragged him through the currently fashionable fashionable controversies about her, and, as you might expect, he gave her high marks as a colleague, a judge and a person. The closest he came to a put-down was to describe her as “very direct, very pointed, sometimes a little more brusque than others,” although that may be the Lake Wobegone view of anyone who grew up in the Bronx.
As a committee member, Tunheim said, Sotomayor was always well-prepared and can be very persuasive. Her personality is “one of the aspects that’s been somewhat overlooked” in the early reactions to his friend’s nomination. Justice David Souter, whom Sotomayor will replace if she is confirmed, was “a bit of a loner, not a persuasive personality.” Court analysts have described justices Antonin Scalia and Stephen Breyer as outgoing, coalition builders in the internal workings of the court. Tunheim predicted Sotomayor’s personality (“very personal, not aloof at all”) will make her an influential member of the Supreme Court.
I asked about the strange issue of empathy. Pres. Obama has said he favors judges who have empathy for the struggles of ordinary people and Sotomayor has confessed that the idea of a totally objective judge strikes her as an aspiration, but impossible to achieve. Tunheim said Empathy-gate was an example of how “words get tossed about in this process” or confirmation, words like empathy and phrases like “judicial activism” and “judicial modesty.”
Judicial activism is “a code word, almost a meaningless phrase,” used mostly by Republicans to describe rulings with which they disagree, he said. It is easily and somewhat carelessly applied to describe “any ruling that goes outside of the precedents and makes changes that couldn’t have been easily predicted.”
But from his reading of her work, Sotomayor is “a judge who calls them as she sees them” and “has been careful about resolving each case on the merits.”
“Everybody, whether they try to overcome it or not, brings their own life experience to the bench,” Tunheim said, echoing the argument Sotomayor made the day of her controversial speech. No judge can completely separate their work from their experiences in the world, especially in a close legal question that could go either way. But, Tunheim added: “You can feel all the empathy in the world for a plaintiff, but if the person and the facts of the case don’t meet the standards of the law or the precedents that have been long applied, they’re not going to get relief.”
The idea that a judge who has an ability to relate on a human level with the real people who come before the court is some kind of a problem struck Tunheim as way wrong. “I think it’s an advantage really,” he said.
I asked about the controversy over Sotomayor’s remark that the federal “Court of Appeals is where policy is made,” (a statement she modified immediately after making it off the cuff, but that nonetheless has been used to portray her a judicial activist).
Tunheim’s take: There is truth to Sotomayor’s comment. She should have said that the appellate courts “have an impact on policy,” rather than “make policy.” Because they do, certainly more than the federal district judges (like himself) influence policy, and perhaps more than the Supreme Court does, because over recent years the Supremes have taken fewer cases than they used to. So, on many matters where the interpretation of a law or a constitutional question changes what policymakers do, the federal appeals courts have a big impact.