Posted by Jonathan Adler:
More from Seidman on Sotomayor:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247670901
Elaborating on his strong words about Judge Sotomayor's hearing
performance, Georgetown law professor Louis Michael Seidman [1]writes:
I want to elaborate on some of the (perhaps intemperate) comments I
made last night. There's no denying that Republicans on the
committee put Judge Sotomayor in a difficult moral position, and I
need not elaborate on their own culpability for doing so. Either
Judge Sotomayor had to misrepresent what she knows judges (all
judges, conservative and liberal) do in hard cases, or she had to
risk defeat. I'm willing to concede that this is not an easy
choice, but I nonetheless think that she made a serious mistake. To
his tremendous credit, President Obama has made an effort in his
public statements to shift the official ideology of judging so that
it has some contact with reality. Yesterday, Judge Sotomayor
explicitly repudiated the President. Here are some of the
consequences of this kind of unilateral disarmament:
1. It means that the only people who end up on the Supreme Court
are either naïfs or cynics.
2. It means that every official act that a justice takes deepens
the corrosive cognitive dissonance between what she pretends to do
and what she actually does. This kind of deep hypocrisy imposes
psychic costs that, at some point, are bound to have an effect on
decision-making.
3. Anyone who knows anything about law knows that the official
version is a lie, but many Americans don't know anything about law.
To them, the official version sounds plausible. Reinforcing that
version has a terrible effect on the possibility of serious public
deliberation about constitutional law.
The pity is that all of this was probably unnecessary. The
Democrats have sixty votes in the Senate. It would have taken some
courage for Judge Sotomayor to have told the truth, but not much.
She said yesterday that judges should never decide cases out of
fear. Yesterday, she testified out of fear. We have a right to
expect better of her.
Radford University's Matthew J. Franck replies:
For my part I find the president's account of the role of "empathy"
in judging to be alarming, and I would welcome Judge Sotomayor's
repudiation of his arguments�if I believed her. Frankly, I don't.
I think I know what you mean by the "official version" of what
judges do. I agree with you that "applying law to facts" is too
simplistic to capture the nuances of what Felix Frankfurter called
"judicial judgment." But if it's not where I would stop, it's not a
bad place to start. And if you mean to say that the political
convictions of judges are either a) inevitably a part of their
legal judgments or b) desirable elements of the same, then I
disagree. Certainly their political convictions are not desirable
elements in judicial judgment, and to the extent that they
inevitably creep in, they should be minimized as close to the
vanishing point as possible by every conscious effort a judge can
muster.
Judge Sotomayor, in the speeches from which she now flees
unconvincingly�sorry, I mean which she now assures us were
misunderstood�takes the view that gender and ethnicity influence
the convictions of the judge, which in turn influence legal
outcomes. Like the president, she celebrated this rather than
worrying about it. Now she sings a different tune.
References
1. http://www.fed-soc.org/debates/dbtid.30/default.asp
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