Sotomayor not a justice for these times

Marketplace Staff May 27, 2009
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Sotomayor not a justice for these times

Marketplace Staff May 27, 2009
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Kai Ryssdal: It’s early days in the Sotomayor confirmation fight. There’s political money still to be spent as Steve Henn was just talking about. Background checks and Senate hearings yet to come. A lot of ground’s going to be covered over the next couple of months. For commentator David Frum, not enough of the right kind of ground.


DAVID FRUM: Supreme Court nominee Sonia Sotomayor will certainly face questioning about Roe v. Wade and same-sex marriage and other hot-button issues at her confirmation hearings. She’ll very likely be grilled about executive power and terrorism. Senators will consider her judicial temperament, including reported complaints from former Second Circuit clerks that she has behaved as “kind of a bully on the bench.”

Odds are however that she will face almost no questions about commercial law, taxation, and bankruptcy.

This omission would be especially glaring now. The Obama administration is challenging settled principles of commercial law in ways more radical than anything seen since the 1930s. In the Chrysler bankruptcy, it told secured creditors that they were unpatriotic profiteers for asserting their undoubted legal rights. That case now threatens to become a precedent for the looming General Motors bankruptcy and who knows how many other cases.

Yet the current court justices have strikingly little experience as business lawyers. Chief Justice John Roberts has worked for business clients, but always as an appellate litigator — that is, as a kind of after-the-fact freelance pleader, not a counselor who navigates a company’s way through the tangles of existing law. Only one justice, John Paul Stevens, has done much advising of business clients — half a century ago. And Stevens is the most senior member of the court, aged almost 90.

President Obama has talked of his desire for “empathy” in his nominees. Yet ironically, with this judicial pick, he has confirmed a trend toward judges whose experience of business law is abstract and academic — who do not know what it means to explain to a client that what was a secured debt yesterday is not a secure debt today. A little empathy for the people who make America’s economy go.

How about that for a change?

RYSSDAL: David Frum is a resident fellow at the American Enterprise Institute.

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