L.A. Times: Somin Debates Chemerinsky on Sotomayor Nomination

The May 27, 28, and 29 editions of the Los Angeles Times feature a three-part debate between Mason Law Professor Ilya Somin and Dean Erwin Chemerinsky of the University of California—Irvine School of Law centering on the nomination of Sonia Sotomayor for the Supreme Court.

In Part I of the debate, Somin and Chemerinsky consider the question of whether race and gender matter for the Supreme Court, with Chemerinsky arguing that Sotomayor will bring to the court life experiences that are absent or largely unrepresented among the current justices. Somin counters with acknowledgment of the the symbolic significance of Sotomayor's nomination, but he argues that the nominee should be judged more by her legal opinions than her race and gender.

Part II of the debate centers on the question of whether there is a conflict between empathy and good judging. Somin writes that judges should apply the law as written, regardless of empathy for the litigants, and that reliance on empathy can impede accurate assessment of the consequences of judicial decisions. Chemerinsky counters that judging is a human activity in which there is often a strong element of discretion, and how that discretion is used is a function of the views and life experiences of those judging.

Somin and Chemerinsky conclude the debate in Part III, in which they consider the question of whether Obama's November victory provides him a mandate to structure the Supreme Court to his own preference. Chemerinsky argues that in filling a judicial vacancy, a president's nominee requires consent of the Senate through the confirmation process, and that the ability to restructure the court relies heavily on the number of vacancies that occur during a president's term in office. Somin points out that debate over Supreme Court nominations is part of an ongoing dialogue over the proper functions of the judiciary. He observes that the 2008 elections were not a referendum on Obama's judicial philosophy, but rather that the outcome was the result of public anger over Republican management of the economy and the war in Iraq.

See a related article: Somin on Sotomayor in New York Times.