Day 4 Reflections - What we can agree on

Here is something that we can all agree on. Over at PrawfsBlawg, Howard Wasserman of Florida International says that the Sotomayor hearings have been "inane and meaningless." This has been a widely shared reaction among liberal legal academics and lawyers. They are disappointed in (even if they are willing to excuse) her retreat into a caricature of judicial restraint. They are put off (even if they are willing to rationalize) the fog of platitudes and non sequiturs with which she has responded to questions.

Here's an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the 14th amendment:

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

"What is the test" is a question that she could and should answer. Her response is "well, there'll be one."

Here is another response to a Feingold question.

FEINGOLD:

...

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

Her understanding of the cases is that they were cases.

When Sarah Palin responded to questions by playing a game of Scrabble, folks wondered whether she knew what she was talking about. Here we assume that Judge Sotomayor is just taking the traditional evasion of Supreme Court nominees to a new level.

This vitiates the Senate's "advise and consent" function at least if we believe the hearings should be a vehicle through which it exercises that function. There is no way that anyone, based on these hearings, could know whether Judge Sotomayor is of Supreme Court or, for that matter, district court caliber. It's an exaggeration, but only a bit of one, to say that, based only on the hearing, I don't even know if I'd hire her as an associate.

Of course, her answers at the hearings are not all we know. She has a career to point to. She graduated from a top law school and worked as a prosecutor and at an excellent law firm She has functioned as a competent federal judge for many years. Nor is it evident that hearings will lead to better consideration of a nominee. While all of the Senators' questions are not incomprehensible or ill conceived, many are both.

In addition, hearings including interrogation of the nominee have not always been thought to be part of the confirmation process. Justice William O. Douglas, during his hearing in 1939, waited outside the hearing room and sent in a message asking if there were any questions. There weren't.

But this was during a time when people really did seem to believe that judging was a mechanical function and that the measure of a judge was pretty much limited to his objective qualifications. Justice Douglas, ironically, did more than most to put the lie to that.

Given the fondness of the Congress (and the Senate in particular) for its prerogatives, I can imagine a desire for pushback. Professor Wasserman worries that it may take the form of impeachment when someone like Judge Sotomayor rules in a way that is inconsistent with what was said at the hearings. He says that such an effort is unlikely to get out of the House but that it would be an awful development. I agree.

The only real way for the Senate to pushback is to refuse to confirm someone who is insufficiently forthcoming at his or her hearing. But, in our current circumstance of relatively high political and legal division, its hard to imagine that either the Democrats or Republicans would place, depending on your view, institutional privilege or constitutional function, above a vote on the Court.

And that's the real story behind this hearing. Quite apart from the affirmations to just "apply the law" or to embrace the lessons of one's experience and in spite of the characterizations of Judge Sotomayor as a technician or an activist, everyone knows - or thinks they know - how she will vote on a variety of issues. Like Chief Justice Roberts and Justice Alito before her, that is why she was nominated. It is why she will be confirmed. Whether everyone was right will remain to be seen.

Cross posted at Marquette University Faculty Blog

Day 3 reflections

I think one can conclude that Judge Sotomayor is a competent judge, but not an exceptional one. She has made a couple misstatements of the law but I can't imagine that one could be grilled for three days without a few. What she hasn't done is demonstrate a particularly strong legal mind. Part of the reason may be strategic. Commentators on the left and right are fairly unanimous that she has been playing not to lose, refusing to engage the Senators and offering herself as an exemplar of a caricatured view of judicial restraint. She can't possibly believe the latter since even conservative jurists, scholars and lawyers don't think that the interpretive process is as determined as she has suggested it is.

When you go into a shell, it's hard to impress people. And she hasn't been impressive. But, at the same time, she hasn't shown herself to be unqualified or done anything that would make it tough for Democrats to support her.

As others have noted, it says something that a judge who no one really believes is restraintist feels she must pretend to be one even when the Democrats have 60 votes and the President remains popular. If, as some have said, we are all legal realists, we sure don't want to admit it.

Day 2 reflections

Judge Sotomayor will certainly be confirmed. The administration knows it and their hearing strategy is quite clearly to play not to lose.

But one of the more interesting reactions to Day 2 of the hearings is from those on the legal left who are frustrated by Sotomayor's repetition of what they believe to be inaccurate conservative memes about the judicial role. As I blogged earlier this week, these folks - and most legal academics - hate Chief Justice Roberts' umpire analogy. I am not so negative on it, although even I think it is better when modified as I suggested in my post.

But Judge Sotomayor has gone all in on the "nothing but the law" approach to the extent that her testimony is difficult to reconcile with her earlier comments on the indeterminancy of the law and the role of multiple perspectives in judging.

My own view is summed up by Professor Randy Barnett. I do not believe that the law is radically indeterminate, but it is more underdetermined than Judge Sotomayor as witness has allowed. I think that there are ways to deal with undetermined law that are more consistent with the rule of law, separation of powers and democratic legitimacy than others. For example, I am not persuaded to adopt any form of epistemological privilege for the dispossessed.

But others - maybe even Judge Sotomayor (based on her consistent remarks over the years) - may disagree and some of those who do are not happy with her performance. Professor Michael Seidman (a man of the left), blogging at the Federalist Society's website, says it this way:

Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

H/T: Randy Barnett and Jonathan Adler

The law and epistemological privilege

As the Sotomayor hearings proceed, I thought I would turn again to the issues raised by the Judge's oft-cited "wise Latina" speech and similar remarks suggesting that there may be a connection between judicial decision making and the judge's ethnicity and background.

One common approach is to wonder whether this is "racist." Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the "racism" position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn't a team player.

But I think it is unfair to say that she was making a claim for some form of racial superiority.

Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.

I think that Judge Sotomayor almost certainly believes this and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.

The reason that the debate has not - and should not - end with the second approach is that it is - literally - not what she said, both in the La Raza article and on other occasions.

Although it seems reasonable to explore these statements during the hearings, I am not confident that it will be done by the Senators in an incisive way or that Judge Sotomayor will depart from her talking points. What's happened so far this morning confirms that.

I would suggest a third meaning - or group of meanings. Judge Sotomayor may have been saying something like a juridical version of the concept of the epistemological privilege of the poor advanced by liberation theologians. The idea is that the oppressed have a special insight into the nature of and reasons for their oppression. John Yoder, for example, writes that if you see things from below, you will see them as God does.

Of course, Judge Sotomayor was making no theological claim, but she may have been saying that, given her understanding of the nature of our society, the perspective "from below" may be more accurate.

A "thinner" variation of this view might be something like John Hart Ely's argument for a juridical hermeneutic that concerns itself with protection of those who may be less able to protect themselves in the political process.

For a variety of reasons, I disagree with both variations on this view, but I am not unsympathetic with its underlying rationale and don't think it's fair to call it racist. Perhaps it is not at all what Judge Sotomayor had in mind. Still, I think that the extent to which a judge believes and is informed by the assumptions that inform it and its implications for judicial decision making is fair game.

Cross posted at Marquette University Faculty Blog

Shark with really good graphics

My column in WI Interest debuts today. I guess they are calling it Culture Con.

Hearing reflections - Day One

Yesterday, the New York Times took on the analogy between judges and umpires. Almost as if in coordination, a number of Democratic Senators riffed on it.

Of course, judge as umpire is not a perfect analogy. I tend to think it is better expressed in terms of the tale of three umpires. The first says that he calls them as they are. The second says he calls them as he sees them. The third says that they are nothing until he calls them. A judge - at least in a court of last resort - is closer to the second umpire. There are judgment calls but he ought to believe that there is something called a strike zone and that he needs to conform his calls to it rather than his own sense of what is good for the game.

Last week, the Brennan Center - a left wing policy center associated with the NYU Law School - released a study showing that Judge Sotomayor's record is much like that of her Second Circuit colleagues. It's an interesting bit of work. But the most illuminating thing about it is that there are not large differences between any of the judges on the Second Circuit. As the study notes, over 90% of the constitutional decisions in which she participated were unanimous. That won't be true on the Supreme Court where only the most difficult and unsettled cases will be heard. That's why aggregate stats of the kind pushed by the Brennan Center are of limited value.

Am I missing something or was Senator Leahy's summary of what happened to Miguel Estrada (he was nominated during the time that the Republicans controlled the Senate and did not get a hearing) enormously deceptive? Fifteen days after Estrada was nominated, Senator Leahy's colleague from Vermont began to caucus with the Democrats and control of the Senate flipped. What prompts people to make such shoddy arguments?

Sunday Night Songs

Sometimes I get push back for my Sunday musical selections. Why do I it? Because I can. And because I have found out about things I liked in the oddest places and maybe someone else will too.

Today I turn to my occasional theme of, in my son's words,"quirky chick singers." I am not generally a fan of country music and I don't know that she is particularly quirky, but I do like Miranda Lambert.







And since I am on country music tonight, I am reminded that a few years ago, the Reddess and I went to a couple shops on Rodeo Drive in ball caps and sun glasses. They were really nice to us. I am convinced that they thought we were Reba McEntire and her manservant.

Politics as Total War

A few years ago, a Department of Defense official called for a boycott of tony law firms that represented - on a pro bono basis - Guantanamo detainees. He was roundly - and I think justly - criticized.

But his view of politics as total war - something to be imported into nonpolitical walks of life - seems to be gaining currency. Earlier this year, One Wisconsin Now organized a phone campaign in which it urged its supporters to call and complain to a large local law firm about one of its young associates' pro bono work. This young woman was apparently donating her time in support of Wisconsin's marriage amendment. The objective was to use a law firm's natural desire to avoid controversy and her economic vulnerability to shut her up and deny a party the legal representation of its choice.

Paul Soglin's WMC Watch and full court press for disclosure of donors to political conduits is concerned, at least in part, with a desire to place pressure on businesses that don't behave politically in much the way that Epic Systems forced a contractor off WMC's board.

Is there something wrong with this? Shouldn't we all vote with our pocketbooks? Isn't the personal political? The problem, it seems to me, is that this type of think absolutizes our political differences and destroys dialogue. We either shut up (withdraw from the battle) or escalate turning debate into, as I said, total war.

This is increasingly the way that our political wars are fought. My law school classmate Robert George recently put it this way in the context of the debate over same sex marriage:

[

An] insidious and brutal way in which many advocates of sexual liberalism deploy cultural power in the cause of redefining marriage is by depicting their opponents as bigots. Across the country, they have pursued a strategy of intimidation against anyone who dares to dissent from their position in a public way. Their appalling treatment of Carrie Prejean is merely one example. Their relentless personal attacks on her were designed to send a clear message to others who aspire to succeed in any area of public life, from beauty pageants to careers in journalism and politics: “If you oppose us, if you have the temerity to express support for the conjugal conception of marriage, we will smear you as a rube and a bigot, make your life hell, and do our best to ruin you.

As I noted at the outset, this isn't a tactic limited to the political left. While I appreciate that this post could be seen as special pleading (I pretty much work with the trifecta of the betes noires to the left), I'd like to think that our common life would be a lot better and our political debates much more productive if we faced each other with a presumption of good faith and respect. I think we'd all be better off if we didn't believe that the proper response to our political opponents was to search and destroy.

H/T Rick Garnett (as to George's comments).

Cross posted at Marquette University Law School Faculty Blog