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Sotomayor Warns Confirmation Battles Risk Undermining Courts

Feb. 10, 2022, 12:47 AM

Justice Sonia Sotomayor warned that the increasingly political nature of Supreme Court confirmations could further undermine the legitimacy of the third branch of government.

“It certainly does feed into the public’s uncertainty. And that has a price,” she said while speaking Wednesday during an online event sponsored by the New York University School of Law.

Her comments come as the White House weighs candidates to replace Justice Stephen Breyer, who will step down at the end of the term.

Recent Supreme Court confirmations have been decided along almost purely party lines.

Early battle lines over the next nominee have already been drawn, as several Republicans have criticized President Joe Biden’s promise to nominate the first Black woman to the high court.

“The more partisan the voting becomes the less belief that the public is likely to have that Congress is making a merits or qualifications-based assessment of judicial nominees,” Sotomayor said.

The court has recently faced a backlash from progressives who criticize what they say are politically motivated rulings by the current 6-3 conservative majority.

‘Issue of Slogans’

Sotomayor also warned that the politicization of judicial philosophy—including the best way to interpret the Constitution and federal statutes—was contributing to the public’s waning trust in the high court.

Under Donald Trump, Republicans prioritized nominating judges who described themselves as originalists and textualists—judicial philosophies that emphasize the original understanding of the Constitution at the time of the Founding and the text of congressional acts.

“For the first time in our history, the mantle of judicial philosophy has become tightly interwoven with political parties,” she said, noting that such groups have rarely in the past discussed “the issue of the best way to approach interpretation of the Constitution and statute.”

“Now political platforms have adopted the language of judicial doctrines,” Sotomayor said, without explaining the nuances of those philosophies.

“It becomes an issue of slogans.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com