Thursday, May 28, 2009


We're being told that there's something scandalous about Sonia Sotomayor's assertion that her life experiences affect her work as a judge. This criticism of Sotomayor is being taken to absurd lengths -- references she once made in a speech to Puerto Rican foods she's frequently eaten are being eyed suspiciously by the right:

According to Hill reporter Alexander Bolton, "This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine such as patitas de cerdo con garbanzo -- pigs' tongue and ears [actually pigs' feet with beans] -- would somehow, in some small way influence her verdicts from the bench."

Curt Levey, the executive director of the Committee for Justice, a conservative-leaning advocacy group, said he wasn't certain whether Sotomayor had claimed her palate would color her view of legal facts but he said that President Obama's Supreme Court nominee clearly touts her subjective approach to the law.

So what do you suppose Antonin Scalia would think about all this? He's regarded on the right as a near-ideal judge. Surely he'd be horrified at the notion that a judge's food history matters -- right?

Er, no.

Last year he published a book entitled Making Your Case: The Art of Persuading Judges. In an interview he gave to The Wall Street Journal's Law Blog at the time of the book's publication, he made clear that he assumes food and personal history will be a part of a judge's outlook. Oh, and he talked about some of his dining experiences:

In the section entitled "Know your audience," you urge advocates to learn as much as they can about the judge who will decide the case - from what entities they represented as a lawyer, to their favorite restaurant. For a litigator arguing before the Supreme Court, what's important to know about Justice Scalia?

Oh my. Well, I was a law professor, so I'm not scared by abstract academic ideas. I was in the government, and I am aware of both the benefits and the costs of federal agencies. I was the head of the Office of Legal Counsel, which is really the paladin of presidential prerogative. So Scalia probably cares about observing the separation of powers.

As for favorite restaurants, we heard that your favorite D.C.-area Italian eatery, A.V., closed recently.

Isn't that a shame? I sometimes go to Tosca, but Tosca's a lot pricier than A.V. used to be. What I recommend is right across the river in Crystal City, a little place called Bebo. It's much less pricey. The ambience is not as posh. But the food is just as good. The pizzas are perhaps even better than they were at A.V. They have a wood-burning pizza oven imported from Italy.

Sounds delicious. But tell me, why is it so important to know the background of a judge, but not important to know the background of a statute? You famously spurn any use of legislative history.

Oh it is important to know the background of a statute if you’re speaking to a judge that uses legislative history. I'm not that judge. I'm giving advice to lawyers. Your job is to do whatever you can within proper ethics to persuade this particular judge.

So judges aren't robotically strict interpreters of the law? And their backgrounds and work history and even personal food tastes are influential on their decisions? And that's true even of the great conservative jurist Antonin Scalia????

Who knew?

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