Sotomayor’s lost opportunity


 

Jeffrey Rosen gets it exactly right: “It’s too bad that neither Sotomayor nor any of the Senators felt at liberty to say what many scholars and court observers believe to be true: Justices often legislate from the bench, and sometimes that’s a good thing.”

This confirmation hearing has turned into a huge lost opportunity for liberals. She’ll definitely get the job, but the Republican senators have done a really good job of cornering her and forcing her to backtrack. This was a great chance for liberals to give a proper defence of judicial activism and of the role of judgment in interpreting the law; instead, she’s on record now endorsing a preposterous theory about the judge as an “umpire,” whose duty it is to simply follow and apply the law.

That’s a theory no legal scholar in the land endorses, not even the so-called “strict constructionists”; if it were even remotely true, not only would we not need a Supreme Court, we wouldn’t even need judges. The Dems will win this battle but the cost is high: They have conceded the strategic ground for the next fight to the Republicans.


 
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Sotomayor’s lost opportunity

  1. I wish there were better examples in that article regarding what Sotomayer said. Now I haven't read the cases the article cites. But professor or no, he thinks that creating a test to be applied to ascertain a legal principle counts unquestionably as policymaking, I am skeptical at best.

  2. They're called "strict constructionists", not "constructivists", for starters.

    Many of them endorse the "umpire" view of judging which you casually dismiss as "preposterous", including Chief Justice John Roberts who explicitly formulated it in those terms during his own hearings. Roberts also happens to be one of the brightest legal minds on the planet.

    I can't make sense of your logical leap to the conclusion that if the "umpire" view were "even remotely true" we wouldn't need judges. Perhaps you also think that baseball doesn't need umpires, or that if it does, the umpires are supposed to change the rules as the game progresses.

  3. They're called "strict constructionists", not "constructivists", for starters.

    Many of them endorse the "umpire" view of judging which you casually dismiss as "preposterous", including Chief Justice John Roberts who explicitly formulated it in those terms during his own confirmation hearings. Roberts also happens to be one of the brightest and most respected legal minds on the planet, which is why Sotomayor modeled her answers after his.

    I can't make sense of your logical leap to the conclusion that if the "umpire" view were "even remotely true" we wouldn't need judges. Perhaps you also think that baseball doesn't need umpires, or that if it does, the umpires are supposed to change the rules as the game progresses.

  4. They're called "strict constructionists", not "constructivists", for starters.

    Many of them endorse the "umpire" view of judging which you casually dismiss as "preposterous", including Chief Justice John Roberts who explicitly formulated it in those terms during his own confirmation hearings. Roberts also happens to be one of the brightest and most respected legal minds on the planet, which is why Sotomayor modeled her answers after his.

    I can't make sense of your logical leap to the conclusion that if the "umpire" view were "even remotely true… we wouldn't even need judges." Perhaps you also think that baseball doesn't need umpires, or that if it does, the umpires are supposed to change the rules as the game progresses.

    • woops — thanks for correx.

  5. They're called "strict constructionists", not "constructivists", for starters.

    Many of them endorse the "umpire" view of judging which you casually dismiss as "preposterous", including Chief Justice John Roberts who explicitly formulated it in those terms during his own confirmation hearings. Roberts also happens to be one of the brightest and most respected legal minds on the planet, which is why Sotomayor modeled her answers after his.

    I can't make sense of your logical leap to the conclusion that if the "umpire" view were "even remotely true… we wouldn't even need judges." Do you also think that baseball doesn't need umpires, or that if it does, the umpires are supposed to change the rules as the game progresses?

    • "Roberts also happens to be one of the brightest …."

      There are many people better qualified to judge than me who feel he spent his legal career
      serving the interests of his corporate masters as though they were one and the same as the
      national interest. And fully expect that will not change.

      So, bright maybe. Fully respected, probably not. Mileage may vary.

      • "Corporate masters"? He only had a private practice for three years (1986-1989).

        • You're assuming that his service in the Reagan and Bush administrations was
          dedicated to the furtherance of human rights in Shreveport ?

          • I suppose you feel that anyone who served the US federal government at any point between 1981 and 1993 is tainted somehow.

          • Aren't they?

          • 1993 holds no magic for me.

            Mr. Rubin, meet Mr. Summers. Oh, you already know each other. How could that be ?

    • To extend the baseball analogy further (though I dislike the sport enough to wish I didn't have to. :D)- why not replace the plate umpire with a camera/computer-enforced strike zone?

      This is, I imagine, Potter's point – if it were just a matter of applying settled legal rules, there's less (and arguably no) need for human judgment. But situations are usually more complex than this, especially when a case has worked its way up through several levels of appeal to a Supreme Court. Implications need to be considered that go beyond the strict application of the law, both on a policy level and on an individual-effect level.

      The fact that the American political situation requires everyone to deny this is extremely depressing.

      • It's better to think of it more in terms of applying principles rather than following rules. it's a small but subtle distinction that I've always found goes a long way to looking at how justice works.

        • That's a good point, and speaks to the accuracy of the baseball analogy. Try football though; the determination of "unnecessary roughness" is made by applying a principle to a given situation. I think Potter is suggesting that justices should do more than merely apply laws and legal principles to specific cases (certainly debatable) and he's also dismissing the alternate view as both "preposterous" (this is foolish) and not held by any serious legal scholar (this is obviously false).

      • In baseball the ump does indeed fulfill the role of a camera/computer enforcer. In law, there is no viable camera/computer alternative that could determine how the law applies to a particular case. The "camera" is testimony and arguments, and the "computer" is the judge.

        The US Constitution stipulates that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." In other words, Congress makes the law, and no one else. This is to ensure that laws are made by elected representatives rather than political appointees (like judges).

        Potter may disagree, but he's dead wrong that no legal scholar holds the "umpire" view (Roberts being one obvious counter-example) and his dismissal of it as rendering judges unnecessary makes no more sense than the same statement applied to umpires in baseball (whether electronic or human).

    • " or that if it does, the umpires are supposed to change the rules as the game progresses?"

      They don't? People do realize that the umpiring comparison is actually supportive of the opposite position?

      Think about it: the most important rule in baseball is the strike zone and, while it's very specifically designated, in practice it's interpreted differently not just by each umpire but, many would argue, also based on who's pitching and how much credit they get for being able to hit the target.

      The idea that every umpire is an absolute arbiter of the rules exactly as they exist is a fallacy of childhood simplicity overcoming reality.

  6. While I understand where Jeffrey Rosen is coming from, I did manage to watch some of the Confirmation hearings over the last three days – and I saw some Republicans – notably Sen. Lindsay Graham – who tried to play like "cat with rat" by trying to nail Justice Sottomayor to the position – that the Constitution trumps all. But got himself into something of a tangle when tiptoing around the underlying racial issues supposedly rolled into the Ricci Fire Service ruling – he had to admit that American society is continually changing – and that what goes in New York may not go well in South Carolina – and – by doing so – I think opened the door to the Court debating / interpreting matters in the context of the current mix and mores of society. He also touched on one judicial ruling (I can't remember for sure – but it might have been Roe Vs. Wade) where – as he put it – no politician (certainly not I in SC) would have had thre courage to make that ruling that changed the law – and I read almost an expression of reluctant admiration in that statement…as if he was almost encouraging Justice Sottomayor to be equally courageous – where appropriate.

  7. And what exactly does it mean to say judicial activism? If it means decisions which have certain policy aspects to them, it's far from uncommon and can occur in the most benign circumstances that never make it into the press. It's not a policy or political job, but being a judge carries weights that sometimes affect politics and policy.

    If it means a judgment not based on a statute, that's a longstanding legaltradition that's older than both Canada and the U.S. itself. We don't see people walking around screaming "I can't believe you can sue somebody for letting a dead snail get into your soft drink! These judges must be reined in!"

    Far too often, however, people (usually conservatives) try to imply it means a decision for which the court actually has no authority to issue. And almost always what they're really saying is that they don't like the case itself.

  8. The confirmation circus is no place to have a debate on "judicial activism." Rosen's just getting out in front again to define the parameters of the post-confirmation period. Once Sotomayor is confirmed, nothing said at these hearings will be remotely relevant.

    • In fact, there is no legal forum where a discussion of judicial activism is relevant. It's an academic creature of political science classes and certain political media, nothing more. it's actually extremely difficult to talk about judicial activism in legal terms.

  9. You're right that there are plenty of legal scholars that hold the umpire view, yes.

    The point I'm making is that the "umpire theory" leads directly to the conclusion that, assuming it were possible to construct an electronic system that could call balls/strikes/tagouts, or one that could apply legal rules to a given fact situation, that it would be better to replace the human judges in both these situations with the AIs, and eliminate the possibility of bias (or undue empathy), while retaining all of (and potentially improving) the capacity to apply the rules of the situation.

    This is a hypothetical, of course (though less of one in baseball than in law.). But is it really the case that the only thing keeping human judges in their jobs is the slow pace of computing research? If it is, should it be?

    • "But is it really the case that the only thing keeping human judges in their jobs is the slow pace of computing research? If it is, should it be?"

      Yes and Yes.

    • The reason that judges require so much training is that the judge really does involve many complex inputs and outputs. There is nothing slow about the pace of computer research. Just like there are currently no robots that are indistinguishable from humans, there are not robot judges either. Even though a judge is an umpire, ruling on the law and the constitution requires a great deal of experience and knowledge.

      BTW, I don't expect to see robot doctors either, even though most of medicine is also the application of rules to govern diagnosis and treatment (although some surgery is performed by robots these days).

      • My appreciation of the fast pace of computing research is exactly why I pose this hypothetical – "slow" merely means "slow enough that we do not yet have robot doctors and judges". "Knowledge", and handling complex inputs and outputs is precisely what computers do, and I fully expect that someday, perhaps sooner than we all think, there will be a program capable of doing this job.

        If judges are meant to entirely leave the wider implications of their rulings to the legislature, where exactly _is_ the human element of their role? Surely not empathy, that's a dirty word these days. (and, incidentally, the reason I expect human doctors to always have a place.)

        • There will be effective robot doctors thousands of years before there are effective robot judges.

          • Almost certainly, yes, but this is because IMO there's more to the job than "handle complex input" and "apply settled principles to known facts", as the umpire theory would have it.

            My portion of this thread is a hypothetical posed to the strict constructionists.

          • Mike T's statement is quite profound, when you think about it. And he's probably right.

      • Is it really true that there are robots performing surgeries today, or are you actually talking about robot assisted surgeries?

        I am somewhat familiar with robot assisted surgery, and trust me, the robot is not replacing the surgeon. The robot is doing exactly what the surgeon requests, no more and no less, and in no way is the robot gathering and analyzing information from the patient and then making decisions on how to proceed.

        But you probably actually knew all of that already.

        • Yes, that's what I meant. I know that the robots are being operated by humans, they are robots, not artificial intelligence.

  10. Liberal is an even dirtier word than I thought in the US if these confirmation hearings are anything to go by. As Potter points out there is a Dem President, and dems control Senate as well, but Sotomayor has obviously been told/coached to speak like a conservative because she sounds like Roberts/Alito did during their confirmation hearings. Sotomayor is fortunate that perjury is not an issue here or else she would be in trouble because she's lying through her teeth so far.

    And the confirmation hearings make me wish we had something similar here in Canada. I find it very odd indeed how little attention is paid to the Canadian Supreme Court and what they get up to.

    • Funny, watching American confirmation hearings only strengthens my desire to keep Parliament as far away from the judicial appointment process as possible. The political environment in the States makes these hearings into an elaborate Kabuki dance that we can really do without – you've said yourself that she's lying about the way she views the courts and their role. I happen to agree on that, but ask yourself: why does she feel the need to do so?

      • "why does she feel the need to do so?"

        Because she's an activist and the American people don't like/want activists on the Court making law willy nilly.

        Confirmation hearings are a way for people to find out what a potential judge thinks. Sotomayor's hearings were a farce because she doesn't have the courage of her convictions and she's a bit of a dim bulb, at least as far as Supreme Court judges go.

        • "Confirmation hearings are a way for people to find out what a potential judge thinks"

          Aaaah., ha ha!

        • "The American people" dislike a lot of things, but there's a reason that the Constitution is designed to protect against tyrannies of the majority. Nonetheless, I'd argue that the people are more concerned with outcome than process – otherwise, the voices crying about judicial activism would cry just as much about the Bush v. Gore ruling, or Scalia's opinion in Gonzales v. Raich (the medical marijuana case) – though to be fair, some of them do.

          Incidentally, why exactly would you define Sotomayor, given her record on the bench and the opinions she's actually filed (which do tend to be better ways to assess the thoughts of a judge than these hearings, IMO), as a judicial activist?

          Also, while I'm demanding justification – "dim bulb"? Seriously?

        • "Activist?" "Making law willy nilly?" The Ricci case is merely an application of Title VII from the 1964 Civil Rights Act. This seems like applying, not making up, law.

        • "Because she's an activist and the American people don't like/want activists on the Court making law willy nilly."

          Notwithstanding that I have to compliment you on your use of the Arsenal logo, I do have to say I have no idea why we can't have a frank and open discussion on srs matters with sentiment/quotes like this flying around.

  11. "Judge Sotomayor says “eminent” when she means “imminent,” “providence” instead of “province,” “story of knowledge” instead of “store of knowledge,” and so on." Ed Whelan, Bench Memos, July 15

    "Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative." Jeffrey Rosen, The New Republic, May 4

    There are lots of examples of people, from left and right, saying she's not the smartest person and will not be able to articulate liberal thought very well. If she was a towering intellect, Obama and others would not have made her biography so important to her nomination and would have focused more on her record/decisions.

    I think of Sotomayor as an activist because of her time in PRLDEF, her 'wise Latina' comment which illustrated that she thought she was smarter than others due solely to her race/ethnicity and her biography. I also think her attempt to bury the Ricci case was pathetic.

  12. For once, I disagree with pretty much everything that is written here, which is unusual for myself in regard to Andrew Potter.

    There is of course, a respected law-scholar view which states that the best role for the judge is to be an umpire.

    Whether you agree with that or not, is that it is not at all `preposterous.'

    Second, it matters not a wit as to what the judge said during her confirmation hearings; it will certainly not affect how she rules on the bench. You can expect that Judge S.S. will be ruling very far on the `liberal' side of the judicial spectrum (`liberal' is what Americans call `socialist').

    Third, it matters even less as to what Judge S. maintain during these hearings, on the future hearings before the court. Does anyone remember what Justice Souter said during his hearings – ie. the place in which Sotomayer will no doubt be sitting this autumn?

    does anyone remember ANY testimony from Senate hearings on these matters.

    No.

  13. Andrew Potter….. abosultely rediculous imo of you saying 'Jeffrey Rosen gets it exactly right'.

    A judge is to be impartial and rule for the law of the land created by the people. They are not by any stretch of the imagination there to set policy or legislate (and by extension play party politics), although we can be sure this has happend before.

    And just becasue it has, doesnt mean one should tollerate it.