By Burt Neuborne, legal director, New York University Brennan Center for Justice - 05/13/09 06:41 PM EDT
(Regarding article “Hatch warns against Sotomayor pick,” May 7, and related coverage.) The conservative hatchets are out for Sonia Sotomayor. One political journal published the kind of anonymous gossip about collegiality and personality that belongs in the National Enquirer. Then Sen. Orrin HatchOrrin HatchHow the White House got rolled on the Saudi-9/11 bill Overnight Finance: Lawmakers float criminal charges for Wells Fargo chief | Scrutiny on Trump's Cuba dealings | Ryan warns of recession if no tax reform Overnight Healthcare: Watchdog says ObamaCare program made illegal payments MORE (R-Utah) seized on a single word in a speech to hint darkly that Judge Sotomayor is a “judicial activist” outside the mainstream. The obvious strategy is to nudge President Obama away from considering her seriously to replace Justice David Souter.
I have known Sonia Sotomayor for more than 20 years. She cares intensely about the law, and takes her responsibilities as a judge very seriously. Even when we’ve disagreed, I have found her collegial, respectful of opposing views, and very easy to get along with.
Judge Sotomayor told students at Duke University School of Law that law students like to clerk on the circuit courts because “policy” is made there. Sen. Hatch equated “policy” with “politics,” and accused Judge Sotomayor of the sin of “judicial activism.” But she used “policy” in a completely different way. When a case is not governed by precedent, and when genuine doubt exists about the meaning of the governing text, policy arguments are routinely used to decide what the ambiguous text means. …
I have reviewed Judge Sotomayor’s judicial record, and it is undoubtedly well within the judicial mainstream. Mainstream judging consists of four elements:
First, a judge must determine whether binding precedent controls the outcome of a case. Judge Sotomayor is meticulous is seeking to follow precedent.
Second, if the case is not controlled by precedent, a judge must determine whether the governing text provides an unambiguous, plain-meaning command. Judge Sotomayor is respectful of text, and keenly aware of her duty to follow unambiguous textual commands.
Third, if neither precedent nor unambiguous text dictates an outcome, a judge should seek to select the textual meaning intended by the drafters. Judge Sotomayor consistently seeks to read ambiguous text to advance legislative and constitutional purpose.
Finally, when neither precedent, nor text, nor legislative purpose yields a clear answer, Judge Sotomayor weighs the pragmatic impact of adopting one reading as opposed to another, and selects the “best” reading of the text.
Sonia Sotomayor is entitled to be judged on the merits against a very strong pool of prospective nominees free from the conservative baggage that is designed to sink her candidacy before it gets a fair consideration.
Payday-advance loans beat the alternatives
From Tommy Moore, executive vice president, Community Financial Services Association
I agree with the letter to the editor from Michael Flores of Bretton Woods Inc. on how payday loans are a good source of competition and are much cheaper and much more attractive to consumers (“Keep competition in short-term credit,” May 6).
The payday advance industry exists because we offer our customers a product that is more desirable than the alternatives. Customers use payday advances to cover small, unexpected expenses between paydays. They are people who have a bill to pay today and choose between bouncing a check or paying overdraft fees, late bill payment penalties or credit card late fees, asking family for money or pledging personal possessions as collateral. Consider the fees: $100 payday advance: $15; overdraft protection: $29; late fee on credit card bill: $37; $100 offshore Internet payday loan: $25; bounced check and non-sufficient funds/merchant fee: $56.