Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Let’s Talk About Sonia Sotomayor Like Grown-Ups

During his confirmation hearing in 2005, John Roberts likened the job of a Supreme Court justice to that of a baseball umpire:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

As I wrote a few weeks ago, if there’s anything the media love when reporting on the law, it’s simplicity, either because they don’t understand or don’t have the column-inches for thorough understanding. The umpire analogy was well-received by the mainstream media: “We’re Americans, we understand baseball, but we don’t understand the federal judiciary. Judges make rulings; umpires make rulings. Therefore, umpires are like baseball judges, right?”

Not so much. The baseball analogy fails because appellate court judges, and Supreme Court justices in particular, can re-write the rules of the game, provided they believe those rules to be wrong in the first place. Umpires are not at liberty to “interpret” anything; theirs are facile rulings. They may rule that a particular pitch was a strike, but they may never re-define what constitutes a “strike.” If we really must reason by analogy (which we shouldn’t), then umpires are most like trial court judges. They deal with the object of the law, whereas appellate court judges deal with the law itself. This is why appeals of a trial court ruling do not bring with them any new evidence or new substantive hearings; as far as the appellate court is concerned, the issue of what happened has been settled, but the issue of how the law applies to what happened has not. By the way, this is basic stuff that everyone should know. It’s important to know, since it defines how our judicial system works.

Courts hear a few different kinds of cases. They hear criminal cases, in which someone has violated a law and the plaintiff to the suit is the executive branch of the government, which is charged with enforcing the law. They hear civil cases, in which two parties have a dispute and request the mediation of a neutral decision-maker. Sometimes, in a civil case, the law itself is the subject under discussion, as in, “I think this law violates the Constitution,” or, “I think that thing you did is unconstitutional.” The Constitution is sacrosanct; no law may conflict with it, and when there is a conflict, the Constitution must always win. For this reason, we have tried to imbue the Constitution with what we believe to be the best principles of good governance. When those principles are in the Constitution, then we may say that we are not adjudicating based on just a document, but we are adjudicating against our values, since the ideal Constitution would be synonymous with our values.

The vast majority of judges are really smart people, and Supreme Court justices are the best of the best. I mean that even for the justices I don’t care for, like Roberts, Alito, Scalia, and Thomas. (This is probably why the nation was outraged when President Bush selected Harriet Miers, a true intellectual lightweight, to occupy the nation’s highest bench. It was painfully, painfully obvious that she was nowhere close to qualified to occupy the position. Even conservative commentator George Will said that she was not among the 10,000 most qualified people in the country.) Judges are learned people who make thought-out, reasoned arguments. What it boils down to is whose arguments are most convincing. Ideally, the arguments that best address the law should be most convincing. But law isn’t the only thing that goes into legal opinions, as we shall discover.

For one thing, the law can be vague. When is a government activity a “public benefit” and when is it “general welfare”? The Supreme Court disagreed over these definitions in Kelo v. New London. The court decided (wrongly, in my opinion) that the unsecured promise of future economic revitalization was “public benefit” enough to allow the city of New London, Connecticut to turn over private property for development to Pfizer. The Supreme Court has spent many years deciding what is “necessary and proper” and when an action interferes with “interstate commerce.”

In his book The Invisible Constitution, law professor Laurence Tribe argues that the Constitution is just as much composed of unwritten rules as written ones (kind of like how the universe is composed of both matter we can see and “dark matter.” Hey, analogies are fun!). Roe v. Wade was decided based on legal principles that weren’t necessarily written down, but that must be inferred to exist based on the tone of the rest of the Constitution. Add up amendments 1, 4, 10, and 14, and you get a right to privacy that, while not explicit, is clearly lurking beneath the surface. Appellate courts tend to examine intent more than trial courts, and rightly so, since their rulings will have effects that reach much further than the individual case. (More on that later.)

Were you aware? The Constitution contains no explicit language permitting federal appellate courts to decide the constitutionality of statutes, but Chief Justice John Marshall, in Marbury v. Madison, suggested that judicial review was a necessity for proper enforcement of those things that were written down in the Constitution. No one would argue that, because there is no explicit permission granted to the judiciary to engage in judicial review, the courts should not engage in the practice. If someone did argue that, then the next question would be, “So who will tell us what is constitutional or not?” Chief Justice Marshall had the answer already prepared: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” This rule has served us well for over 206 years.

Where is this going? Sonia Sotomayor has been criticized for suggesting that judges “make law.” Here is a transcript of the relevant portion of her comments, in context this time:

All of the legal defense funds out there, um, they’re looking for people with court of appeals experience, because it is– court of appeals is where policy is made. And I know this is on tape and I should never say that, because we don’t “make law,” I know. I know. I’m not promoting it and I’m not advocating it, I’m– you know. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating. It’s interpretation, it’s application, and Judge Ocero’s right. I often explain to people, when you’re on the district court, you’re looking to do justice in the individual case, so you are looking much more to the facts of the case than you are to the application of the law, because the application of the law is not precedential. So the facts control. On the court of appeals, you’re looking to how the law is developing so that it will be applied to a broad class of cases.

Appellate courts exist because the other branches of government (including the judiciary) make mistakes. No one would suggest (hopefully) that the legislation that comes out of Congress is perfect. Judges are there to correct errors; this is called “relief.” Sometimes, the relief comes in the form of an outright overruling of legislation that Congress has passed. Other times, the court doesn’t, as in the case of Ledbetter v. Goodyear. While the Supreme Court certainly did not endorse pay discrimination, the majority ruled that the Supreme Court did not have the power to grant Ledbetter the relief she sought due to the language of the legislation. Appropriate relief, they said, would be for Congress to amend the law, which it did earlier this year. This is an example of the government working correctly, as much as some people believe that the court should have immediately overturned the legislation.

Judges do not make law, but they do make policy, which Sotomayor also said. Sometimes they have to, because Congress has made incorrect policy, for whatever reason. But anyone who suggests that judges do not sometimes engage in policymaking is being either ignorant or disingenuous. Each branch of government makes policy using the tools at its disposal. Note the use of the word “policy” and not “legislation”; “policy” is a much broader term that encompasses the many kinds of enforceable legal principles that exist in government. Every branch makes “policy,” whether through executive orders, statutes, judicial opinions, public referenda, and constitutional amendments. Not all policy is of the strictly legislative variety.

Sotomayor has also been criticized for suggesting that Latinas make better judicial decisions than white men. The New York Times recently published a transcript of the 2001 Judge Mario G. Olmos Memorial Lecture at Berkeley Law School, during which the comments were made. Her lecture was, among other things, about the lack of diversity in the federal court system, and how that impacts judicial opinions. “Diversity” is important, she said, because “in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.” But why is that diversity of opinion important? It goes back to the wiggle room that all judges have when interpreting the law and potentially making policy. That wiggle room allows for a range of options, all of which are perfectly legal and perfectly defensible. Judges’ backgrounds and experiences influence where they fall within that range. They can, for example, lean toward the side of punishment, or they can lean toward the side of rehabilitation. Both fall within the range of legal possibilities, but judges with different experiences will necessarily have different opinions on which solution is most appropriate. (Or, to bring this outside the realm of race, let’s talk about technical savviness as another kind of diversity of opinion: a judge who understands technology might rule that a minor who “sexts” another minor should not be prosecuted as a sex offender.)

Even Justice Clarence Thomas, who is among the most conservative of the Supreme Court justices, may have brought his experience as a black person to bear on the issue of whether or not cross-burning was protected by the First Amendment. In 2002, Justice Thomas took a break from being famously quiet during oral arguments to declare, “This was a reign of terror, and the [burning] cross was a symbol of that reign of terror. [...] It is unlike any symbol in our society. [...] There was no other purpose to the [burning] cross. There was no communication of a particular message. It was intended to cause fear and to terrorize a population.” Was this an example of someone’s experience informing his interpretation of the law? Potentially. (By the way, in the case, Virginia v. Black, the Supreme Court ruled that a Virginia statute prohibiting cross-burning was unconstitutional. Justice Thomas dissented, writing, “A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the words of the statute but also reality.”)

Here’s the money quote that some people are upset about:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Sounds pretty bad, doesn’t it? After that, she says:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. [...] However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Unfortunately for the people who would like to attack her comments, Sotomayor was not talking about all cases, but rather sex and racial discrimination cases specifically, suggesting that a woman who has had to experience sex discrimination herself is more capable of understanding the reality of sex discrimination than a man who has never experienced it, or studied it only in the abstract. I refer to the Justice Thomas paragraph above.

So no, Sonia Sotomayor is not a racist. And no, she will not legislate from the bench. These two arguments are ridiculous, and it’s shameful that people (like me!) should have to spend so much time refuting them. But as her confirmation hearing looms, the arguments will appear again. It’s important to keep in mind the qualities that make a good Supreme Court justice. Should a justice follow the legal model of applying the law based on pure legal reasoning? Should a justice follow the attitudinal model of using his attitude and values to decide a case? Lawrence Wrightsman, in The Psychology of the Supreme Court, suggests that both must be melded into a human model of what it means to be a justice, since “[t]he legal model bleaches the decision-making process of its colorful human ingredients; it can be portrayed as an ultralogical, if not mechanical, analysis of applications of relevant statutes and decisions.” The attitudinal model, “taken to its extreme, fails to recognize the constraints upon the judge as a professional person.” Melding the two approaches creates a justice who applies the law using reason and logic, but also understands that her opinions will have real consequences for real people.

Judge Sotomayor is definitely a human judge. But then again, all judges are human. While we all acknowledge that judges must use reason to decide their cases, we are loathe admit that, as humans, they have biases that also influence those decisions. Even Justice Scalia, champion of “originalism,” has biases. At least Judge Sotomayor is up front about those biases. And in being up front about those biases, she can be held accountable to them. In her 2001 speech, she said, “I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”

Her opinions are sound (if a little conservative, actually), her experience unquestionable. Her judicial philosophy is, actually, no different from that of other justices, judges, lawyers, and professors around the country and the world. There’s no reason why she shouldn’t succeed Justice Souter and do an excellent job.