Wednesday, July 15, 2009

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


Anonymous said...

Seidman's fury seems entirely out of place. Is the "I apply law to facts" stuff totally simplistic? Sure. Of course that's the job; the question is how one goes about doing it because facts can be ambiguous and require analysis and because (dirty little secret time) the text of statutes and constitutions does not always lend itself to one obvious "everyone gets it" meaning in a given case.

But Sotomayor is simply engaging at the simple benchmark slashed into the debate by her opponents and their predecessors. Anything other than the simplistic "I apply law to facts" or the equally meaningless "umpire" analogy -- garners shrieks of "making law from the bench" and in this case some sort of bias. Being an umpire, calling balls and strikes does not explain how you see the pitches and deal with close calls.

But in any event, Seidman's perjury v. stupidity rhetoric is silly. Sotomayor was simply engaging the discussion at the very low level her critics have insisted on.

The judicial role is very nuanced and complex. What we've seen over and over, a judge, justice or candidate or nominee who attempts to discuss it with any sophistication is torn apart and the discussion destroyed.

Brett said...

I hope this condemnation applies equally to our own Learned Gableman.

illusory tenant said...

Seidman's clearly spent too much time in the company of Ed Whelan and Wendy Long.

In fact, he's even managed to outdo them.

Rick Esenberg said...

Given that Professor Seidman's views on the matter are about exactly opposite of those of Ed Whelan and Wendy Long, I rather doubt he has been influenced by either.

illusory tenant said...

I wasn't referring to his views, I was referring to his apparent intemperateness.

Anonymous said...

It is to bad that we cannot vote after watching the hearings.

Is it only me or does she move rather slowly for her age?

She may be a nice person but is she really the most qualified he had to choose from?

reddess said...

anon 5:22
I don't know if this is what you mean by "she moves rather slowly" but she broke her ankle in June. She has a cast up to her knee and has to elevate her foot under the table she sits at. She must get really uncomfortable having to sit there all that time.

Anonymous said...

Reddess -

I think that answers it because pain affects everything we do. Her answers, facial expressions and physical movements all seemed like there was something wrong.

I hope she cannot say later she didn't mean something she said because she was on pain killers.