Clarity From Ambiguity
George Mason University School of Law Assistant Professor Neomi Rao writes a Wall Street Journal op-ed piece suggesting questions for recent Supreme Court nominee Sotomayor’s confirmation hearings. She notes that:
[A] great deal of law is made (and unmade) when the court interprets statutes…
Statutes are enacted through a difficult constitutional process. They require passage by the House and Senate and the president's signature.
Justice Antonin Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning. Justice Stephen Breyer has argued, to the contrary, that judges should interpret statutes pragmatically to promote good consequences.
Ms. Sotomayor needs to identify where she lies on this spectrum.
If it’s not obvious out of context – or from the fact that this is published in the WSJ – read the whole thing, and you’ll easily conclude that Rao favors the Scalia model. Not surprising for a former associate counsel and special assistant to George W. Bush. The closer you are to the Scalia portion of the “spectrum” the more worthy you are of confirmation.
“Follow the plain meaning” – makes sense, judges are there not to make the law, but to interpret it… we all learned that in third grade.
Let’s back up however. What question was it that Rao thinks Sotomayor should be asked, where her response should be the Scaliaesque “plain meaning” answer?
The question itself, an ellipsis, and the Scalia portion of her answer, repeated for emphasis, follows:
What is the court's role when interpreting ambiguous laws?
… Scalia argues that this finely wrought procedure requires judges to stick to the text of statutes and follow their plain meaning...
If a nominee is asked how they should interpret an ambiguous law, and they seriously respond “by following the plain meaning of the statute”, they should be disqualified on the grounds of stupidity.
