The New Republic

But what would "objectively right or wrong answers" mean, Josh? Even if someone has a stronger case, when it comes to constitutional principles, there is still the matter of interpretation. "Objectively right" would look a bit different to Antonin Scalia than it would to John Paul Stevens. This thinking is redolent of a Platonism that views the answers as being out there, ripe for discovery. So Louis S. has the better of the argument. Still, he is too harsh. Anyone coming up before the Judiciary Committee and then the full Senate wants to lay as low as possible and this has been true ever since Robert Bork came under staccato machine-gun fire in 1987. Sonia Sotomayor is proceeding no differently than have nominees to the Supreme Court for the last generation.

- liberal reformer

July 16, 2009 at 3:26am

seidman:

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?

george:

This is one of those observations that not only cuts through all the bullshit about objectivity and the law, but also points in the right direction regarding just how preposterous it is to imagine this is not bullshit at all.

If you focus the beam on the moral and politcal conflagrations that are particularly combustable when argued before the court, it is absurd to imagine there can be a legal ruling such that one side gets it Right and the other side gets it Wrong.

Now, if you do not believe this to be the case then choose an issue [abortion, affirmative actions, gun control, capital punishment etc] and note how, if you were on the court, your argument would encompass an objective rendering of Constitutional law.

Or, if this is too hypothetical for you, choose a recent court decision and demonstrate how one side or the other succeeds in transcending, "contestable presuppositions, empirical assumptions, and moral judgments."

How about the recent afirmative action case involving the firefighters? Is there a way in which a Supreme could approach this moral and political conflict based solely on an objective rendering of the Constitution?

Concommitantly, is there a way in which his or her decision can be divorced from or have little or nothing to do with his or her moral and politcal values? Is there anyone in here who actually believes this is possible?

Over and again one need but go back to Gore v. BushWorld to note just how stark this hypocrisy can be. As though the Constitution really can be interpreted objectively in a case like this.

Sure, any judge needs to agressively tackle these prejudices when deciding matters of law. Almost everyone will agree with that. But, as Seidman notes, regarding the really tough cases [the ones that make headlines on the front page] complex circumstantial contexts will almost always tug some in one direction and others in a direction altogether different. And to pretend this is not linked to moral and politcal values [or visions] the judges bring into their decisions is ludicrous.

As I have noted before: How come...over and over again...the liberal Supremes vote on cases such that, were they members of Congress, they would vote on legislation that reflected exactly the same moral and political values? Same with the conservatives.

JP:

....it's entirely desirable for public figures to claim that their interpretations of the law are true and correct--that their view of the law is what the law is.

george:

This is "desirable" only in a world where citizens are naive and gullible enough to believe this is possible.

On the contrary, this sort of dualistic, bifurcated thinking reflects [and reinforces] a rigidly manichean approach to human moral and political interaction. As such it feeds right into the wingnut mentality that every moral and political confllict can be resolved as though contextual and circumstantial complexity, contingency and caprice were figments of our imagination. Or mere nuisances.

You find this "desirable"? Taken to its logical extreme, this is the stuff of Nazis and Communists and Jihadists and Crusaders.

The law is neither X, Y nor Z when it is interpreted to either prescribe or proscribe human behavior when adjudicating the relationship between  1] what some people want to do 2] what some people do not do want to do and 3] what it is then decided people ought to do. This is the authoritarian mentality of 99% of the "isms" that have impaled human communities now for thousands of years.

JP:

If judicial liberals or moderates believe conservative jurisprudence is wrong, the solution is not for liberal judges to wring their hands about how things are more complicated and less black-and-white than conservative judges say it is. The solution is for liberal and moderate judges to make forceful arguments for different visions of the law.

george:

This surreal point of view is what one would expect from an academic disscussing The Law...academically? Who in here really believes that if liberals and moderates were to come up with more sophisticated, more  forceful, more visionary arguments, ilk like Scalia, Thomas, Alito and Roberts would be won over? What's next, Limbaugh, Beck, Hannity, Savage and O'Reilly?

JP:

The rest of us will then realize that smart people disagree about what the law is, and we'll try to decide which conception of the law we think is most persuasive. But it's not Judge Sotomayor's job to highlight that disagreement--it's her job to put forward her vision of the law as the correct one, and let the chips fall where they may. There's nothing cynical or dishonest about a judge simply playing her role in the process.

george:

Incredible. What in the world does it mean to pursue, "a vision of the law as the correct one"? In other words, what happens when the intellectual skyhooks are dismantled and the words have to be embedded down in the real world?

Please, by all means, anchor your thoughts above to a recent Supreme Court decision...a decision reflecting on actual flesh and blood men and women coming into conflict with other flesh and blood men and women... such that a "correct vision of he law" can resolve the conflict beyond which the opposition cannot broach a more forceful and meritocratic argument.

george walton

- iambiguous

July 16, 2009 at 5:05am

Conservatives have better labels, such as strict constructionist (who can be against that, right?).  Liberal judges, on the other hand, "make law."  Nothing new here.  There was an emerging view among legal scholars in the 1970s, sometimes called critical studies (the practitioners being called crits), whose point was that judges decide cases based more on their own life experiences than simply applying law to the facts (actually, the crits were more cynical than I describe, believing that judges knowingly decide cases first based on their prejudices and then find a rationale to support the result).  Of course, crits were considered kooks by most in the legal community, and many in academia lost their jobs.  I don't know Seidman, maybe he is a crit, but we now know that Judge Sotomayor is no kook (at least she's not dumb enough to admit it to the Judiciary Committe and the entire US).

- raylward

July 16, 2009 at 6:37am

Raylward -- Legal realists were arguing that "judges decide cases based more on their own life experience than simply applying law to the facts" in the 1930s.  This wasn't an "emerging view" in the 1970s.  Ever heard of Jerome Frank?  And the agenda of the crits was far more radical than you suggest; they also tended to embrace a quasi-Marxist view of legal history.

George -- Please stop.

Josh -- I agree with you, sort of.  That said, I would have loved to have seen what Judge Posner would have said had he ever been nominated to the Supreme Court, since he recently wrote a book about how judges think, and is a trenchant critic of the Sessions / Cornyn view of legal interpretation (judges should just do what the law commands, or however they phrase it).  The thing that's really frustrating about their line of questioning is that the proper role of the appellate judge in the American legal system has been debated for decades by some very smart people, and the senators show little evidence of having spent any time familiarizing themselves with the arguments presented by any of them.

- Androscoggin

July 16, 2009 at 6:58am

" judges knowingly decide cases first based on their prejudices and then find a rationale to support the result"

SC Judges on the left and right do this every day.

- McDuffy

July 16, 2009 at 7:40am

True, the crits were not the first realists.  But they were treated as fringe dwellers in academia for their views.  The description "quasi-Marxist" is not meant to be a compliment, then or now.   Why were they considered "quasi-Marxist"?  Who gets appointed to the court and decides cases (according to their prejudices in the view of the realists)?  Working class folks or establishment folks?  

- raylward

July 16, 2009 at 8:37am

You're both wrong.  Sotomayor's job at the moment is to get confirmed.  And she is following the path blazed by John Roberts to do so:  Bury them in ridiculous legalistic bullshit.  If she started to articulate anything like a discernible "philosophy," other than "applying the law," the Repug senators would be off to races.

On the other hand, it is disgraceful that the conservatives pretend that the are merely "finding and applying the law to the facts."  When Sotomayor says this, it is quite obvious to all how ridiculous it is.  This is excusable as a necessary part of the confirmation process.  However, conservatives, in their writing, like to maintain that this is what they do, and it is a mountain of horseshit higher than Everest, not excused at all by the fact that it is conservative judges who make this claim.  It is a political claim meant to conceal their unabashed lawmaking in the royalist tradition.

- roidubouloi

July 16, 2009 at 10:50am

I agree with roid.  If Sotomayor were facing a committee of senators who would all, in good faith, try to assess her qualities, qualifications, and potential contribution to the Court without dragging in "culture wars" hypotheticals like bloody pieces of meat dripping on the floor and demanding that the nominee clutch them and hold them tight, then she could reveal the kind of honesty that Seidman demands.

Unfortunately or not, she is in a very different position, which accounts for her understated demeanor and her refusal to allow herself to become a character in Session's or Coburn's political cartoons.

- ironyroad

July 16, 2009 at 12:02pm

Raylward -- "The description 'quasi-Marxist' is not meant to be a compliment, then or now. Why were they considered 'quasi-Marxist'?"

I don't mean "Marxist" in the pejorative sense of "dirty commies" or whatever.  I mean literally quasi-Marxist -- i.e., they embraced a materialist interpretation of legal history.  See, e.g., the works of the most famous crit historian, Morton Horwitz.  And some of them actually self-identified as Marxists.  For example, Duncan Kennedy once described himself as "a kind of anarcho-Marxist anarchist," and Mark Tushnet once said that if he were a judge, he would render decisions that would "advance the cause of socialism."

So I think "quasi-Marxist" is a perfectly fair, non-pejorative description of CLS.  Of course, the insight that you attributed to the CLS movement -- that judges' decisions are influenced by their experiences and personality -- isn't necessarily Marxist.  It came out of the legal realism movement (which wasn't Marxist), and versions of it have since been endorsed by plenty of people who aren't legal realists or crits (e.g., Richard Posner).

- Androscoggin

July 16, 2009 at 12:52pm

Posner is the modern realist, who is the chief proponent of a non-fringe movement in legal philosophy called "legal pragmatism," which frankly acknowledges that legal outcomes in hard cases are not determined by the legal materials (which could go different ways), but rather by the judge's view on the overall reasonableness of this or that outcome -- views which, predictably enough, tend to correspond with political attitudes and the like.  Posner would certainly regard everything that is going on at the hearings as fatuous nonsense, though, being a pragmatist, he might defer to it himself, or at least refrain from calling the members of the committee damn idiots, if he were in Sotomayor's shoes.  He might like empathy.  He has argued that Roe's biggest failure was to omit serious discussion of the plight of the would-be mother.  His emphasis, though, is, "What's the most reasonable outcome, all things considered?"  So, although he might acknowledge the influence of his own experiences, he would think that the idea is to actually make good law for everybody.  He's pretty aggressive, then, about admitting the policy-making role of the judge, at least in cases where the conventional materials are either silent or indeterminate, which is anethama to everything the Republicans are saying (even though Posner was appointed by Reagan and is regarded as something of a conservative, but that label doesn't fit him in many ways).

One way to reconcile Sotomayor's responses and the committee's questions with reality is to reject the Posner approach to legal uncertainty and rather embrace a judicial philosophy whereby you can argue, "I am neither making policy nor enacting my preferences, but rather dispassionately applying, as best I can, a principled, consistent *method* to hard cases.  In that way, I can be said to be 'faithful to the law' or 'following the law' and not merely making it up as I go.  The way to tell if I am not doing that -- if I am instead enacting an outcome I simply happen to prefer -- is to catch me not applying that method in a consistent fashion."  Cass Sunstein -- who's not quite as outlandish as Posner, but still a pragmatist -- says that the point that the Republicans are grilling Sotomayor on is a trivially obvious one.  Nobody is going to get up there and say that they don't follow the law or are not faithful to the law or merely enact their policy or personal preferences.  And the reason nobody is going to say that is because that's not how judges conceive of their job (although some might, like Posner).  The question is, as Josh says, what following the law means in a given case.

In other words, the hearings basically consist of Senators asking Sotomayor the uncontroversial question, "Do you intend to abuse your power?"  "Uh, no Senator."  "Alright then!"  It need not be seen as a big *lie*.  Rather, it is a pointless spectacle, but we knew that going in.

- jhildner

July 16, 2009 at 1:12pm

irony [who agrees with Roid]:

If Sotomayor were facing a committee of senators who would all, in good faith, try to assess her qualities, qualifications, and potential contribution to the Court without dragging in "culture wars" hypotheticals like bloody pieces of meat dripping on the floor and demanding that the nominee clutch them and hold them tight, then she could reveal the kind of honesty that Seidman demands

george:

Give me an example of what it means to assess something "in good faith"?

How about the recent affirmative action decision? What does it mean to rule "in good faith" here? How is that distinguised from ruling "in bad faith"? Is it something analogous to the philosophical parameters folks like Sartre and Camus came up with?

You actually believe that we can calculate the difference? And that, in so doing, we can get closer to resolving affirmative action substantively?

Or is this rooted only in the means and not the ends?

Now, we can calculate the difference if we substitute "hypocrisy" for "bad faith". I quote, for example, Mark Sandford. That's easy.

But however you differentiate good from bad faith in reacting to issues like affirmative action it doesn't get you any closer to being able distinguish between a right or a wrong moral/political narrative.

george

- iambiguous

July 16, 2009 at 9:09pm

Of course she will be confirmed. Republicans are making a political statement about her philosophy, not a legal one. They are using the opportunity to show that the court is soon likely to favor affirmative action, gun control, etc. and to rally the people to vote this administration out of office before it is too late.

- r.ennis

July 17, 2009 at 11:01am

....You're both wrong.  Sotomayor's job at the moment is to get confirmed.  And she is following the path blazed by John Roberts to do so:  Bury them in ridiculous legalistic bullshit.  If she started to articulate anything like a discernible "philosophy," other than "applying the law," the Repug senators would be off to races.

On the other hand, it is disgraceful that the conservatives pretend that the are merely "finding and applying the law to the facts."  When Sotomayor says this, it is quite obvious to all how ridiculous it is.  This is excusable as a necessary part of the confirmation process.  However, conservatives, in their writing, like to maintain that this is what they do, and it is a mountain of horseshit higher than Everest, not excused at all by the fact that it is conservative judges who make this claim.  It is a political claim meant to conceal their unabashed lawmaking in the royalist tradition....

You are both wrong whomever you are, I've lost track.

And what Roi says is right, especially this bit of piquant prose: "...Bury them in ridiculous legalistic bullshit.."

So Seidman is as liberal reformer says right, but too harsh.

I find the SCOTUS 5 4 decisons inexplicable by any other measure than ideological preference, which by itself is not a trivial thing amongst smart reflective people like most SCOTUS judges. But those decisions, in epitomes of hard cases, are slo blatantly result driven with legal reasoning hoisted up to rationalize the result in vinidcation of Posner''s thesis, that I'm amazed that not every one thinks so.

- basman

July 17, 2009 at 5:34pm

p.s. The point about the hearing being a proxy for the "culture wars" is right too, adding to the harshness of Seidman's judgments.

- basman

July 17, 2009 at 5:35pm

p.p.s.s Most cases are not hard cases and quite well disposed of in settlement or in trial by the applicable law. What reaches SCOTUS is vrituall by definition a hard case or it never would have gotten  there considering there was an initial hearing and then a round or two of appellate litigation.

- basman

July 17, 2009 at 5:55pm

Youi have to remember that at least some of the senators on the committee were using

"empathy" as a code word for racial-identity jurisprudence.  They are afraid, or pretend

to be afraid, that because Judge Sotomayor is Hispanic/Latina, she will decide cases on the

basis of her "empathy" for members of her ethnic group, gender, or both, or perhaps for

minorities in general.  That assumption is of course the height of racism and

hypocrisy (accusing others of what you would do yourself), and that is why I

think it led to such strong and in some cases over-the-top denials by Judge Sotomayor.

Relying on her background and experience to understand the cases before her is something

Judge Sotomayor clearly has done, and hardly could have avoided, but that is far cry from

the kind of knee-jerk racial favoritism some of the senators were implying.

If empathy is truly an invalid consideration, whose idea was it for us to have to listen to

Mr. Ricci's and Mr. Vargas' lamentations about how hard their work is and how long they studied

for the New Haven firepersons' exam?  How would those things be relevant to their case?

And don't they think black firefighters also work hard, face danger, and have to worry about feeding their families--in addition to studying for a promotional exam that may not have

recognized their true ability and potential?  The fact is that the way these promotions were

handled caused unnecessary pain and frustration for everyone involved, leaving a case that

was a total muddle (and a terrible vehicle for Supreme Court prededent) but one that had to be

resolved no matter who got hurt.  

- mlottman

July 17, 2009 at 6:17pm

LBJ put it best:  Before you can be a statesman, you have to get your election ticket.  Seidman's thoughts tell us more about why he is an academic than whether Sotomayor has comported herself well running the political gauntlet.

- lsernoff

July 17, 2009 at 7:48pm

I agree with Roi, Jhildner and Mlottman.  Moreover, Seidman's problem is that he fails to recognize that the phrase "applying the law to the facts" is virtually meaningless and by no means precludes, in the process of "applying" the law, drawing upon the external sources, personal experiences and personal predilections that we know all judges bring to the process.  So by saying emphatically that she decides cases solely by applying the law to the facts, she placates the dunces and charlatans among her opponents, while the rest of us recognize that she is merely confirming a meaninigless platitude.

- dhurtado

July 18, 2009 at 12:44pm