Sotomayor Says Congress Should Not Tell Judges How to Review Cases

Photo: Mark Gormus/Richmond Times-Dispatch via AP

The framers of the Constitution should have barred Congress from telling judges how to review certain types of cases, such as challenges brought under the Antiterrorism and Effective Death Penalty Act, Justice Sonia Sotomayor said this week.

"I probably would have told the framers that Congress could not specify our standards of review," Sotomayor said in a conversation with law students at the University of Richmond School of Law. "I personally think judicial independence is compromised when Congress decides with detail what the standards should be—[the Antiterrorism and Effective Death Penalty Act] is one of them."

Cases under the Antiterrorism and Effective Death Penalty Act, or AEDPA, generally come to the U.S. Supreme Court as habeas petitions from prisoners challenging their sentences or convictions. Sotomayor had been asked by a student what structural changes she would make in the high court or what more she would have liked the framers to say about the court in the Constitution.

Because of AEDPA's standard of review, she said, "We are now in a place where a clearly constitutional wrong or one that's clear enough will still be upheld because AEDPA tells us if it's not 'unreasonably' wrong, it's OK. Try explaining that to someone in jail or try explaining that to the founding fathers who might have had a very different view of what justice is about."

Roaming through the audience, as has become Sotomayor’s style, the justice fielded a wide range of questions from students on Nov. 17 following a brief conversation with Dean Wendy Perdue. The "roaming" style, Sotomayor said, was a reflection of her innate restlessness. Being a restless child, she said, her family called her "ají," meaning "hot pepper."

Sotomayor called her failure to do a judicial clerkship a "professional mistake," and she strongly urged the law students to clerk for a judge.

"Clerking will substitute for anywhere from five to 10 years of legal experience," she told them. "You will see more styles of advocacy than you can see in private practice. You'll see what advocates do and figure out what works best and doesn’t work. And you'll get exposed to every facet of legal practice. I thought it meant just going to work in a library and I didn't want to do that."

A clerkship, she added, is a "human exposure to learning." And, she said, most clerks become part of their judge's family "and that mentorship lasts a lifetime."

Her other mistake was a "life mistake," she said. "It took me too long to realize that really being open to people, letting them into you life and into your feelings, is a positive thing. I spent too many years of my life being closed off from my pain and my fears of pain." Once you open yourself to people, they reciprocate by being more open to you, she said.

Sotomayor’s prior jobs as a district attorney and a federal trial judge, she said, prepared her best for her position on the high court. "The ability to understand how facts should be developed and how arguments can flow from the creation of facts and influence doctrinal outcome are what make a really great lawyer," she said.

Sotomayor also recounted the period during her Senate confirmation hearings when she thought about withdrawing. "There were many who said I wasn't intelligent enough, smart enough to be on the court," she recalled. "It was very, very painful to me. I had spent a lifetime of legal work, making colleagues on the Second Circuit, and all of a sudden things I thought people thought of me were proven wrong by some. I talked to a dear friend and said, 'Is it worth getting to the court with a diminished reputation?’ ”

Her friend was angry with her. "She said: 'This is not about you. This about my daughter. She's eight years old and there's no Hispanic in high position of power in the United States of America. Your presence there will give her and many other children of similar backgrounds the possibility of hope. Yeah, you feel bad. Get over it.' " And Sotomayor did.

Sotomayor said she considers the late Constance Baker Motley, a federal judge and civil rights lawyer, a role model who, one day, said to her: "To those whom blessings are given, you have an obligation to give back."

Sotomayor revealed one unrelated tidbit during her remarks: Justice Ruth Bader Ginsburg loves muffins.