Just Words? At Sotomayor Hearings, Rhetoric is Relevant

The line is now infamous:

I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion.

Judge Sonia Sotomayor's oft-repeated comment runs counter to statements made by Justice Ruth Bader Ginsburg and retired Justice Sandra Day O'Connor -- who both contended that a wise old man and a wise old woman should reach the same conclusions if they follow the law.

These last two days, Sotomayor has often been asked about her statement. She has refused to completely walk away from it, but has instead said that it was merely a "rhetorical flourish" which "fell flat." One wonders why a line that "fell flat" would be repeated so often.

This was not the only Sotomayor statement that has gotten her in trouble. In 2005, she said that the "court of appeals is where policy is made," which implies that the legislature is not where policy is made. More specifically, it implies she was legislating from the bench, not merely following precedent.

But all of this prompts the question: Does it matter what she has said when we can instead look at her record?

Generally, it is axiomatic that actions speak louder than words and that talk is cheap. As such, when hiring someone for a job, a prudent boss will give more consideration to a person's track record of success than to the promises made during a job interview (after all, prospective bosses and employees both promise the moon during the courting phase).

But being a Supreme Court justice is different from any other job in the world, inasmuch as it is a lifetime appointment. For this reason, a person's rhetoric -- which can betray what they really believe -- may in fact be a better indicator of how they will act once elevated to the high court. Or, as one Bible passage puts it, "Out of the abundance of the heart the mouth speaks" (Luke 6:45).

In his opening statement at the Sotomayor hearings, Sen. John Cornyn (R-Tex.) stated it this way,

To borrow a football analogy, a lower court judge is like the quarterback who executes the plays -- not the coach who calls the plays. That means many of your cases don't tell us much about your judicial philosophy. But a few of your opinions do raise questions -- because they suggest the kinds of plays you'd call if you were promoted to the coaching staff.

The U.S. Senate may decide that her past words are not disqualifying, but any notion that they are not as relevant as case history would be a mistake.