Monday, July 20, 2009

Sotomayor--Let's Put the Cards on the Table (More on the Dreadful Success: SS on Judging)

The immediately preceding post on New York Court Watcher offered an assessment of Judge Sonia Sotomayor's performance at the confirmation hearings. In short, no political bombshells to hurt her chances, but no demonstration that she deserves a seat on the nation's high court either. Substantively abysmal. (See Sotomayor--Let's Put the Cards on the Table (A Dreadful Success at the Hearings), July 19, 2009.)

The next few posts will consider Sotomayor's testimony on a few important topics about which the Senators questioned her. They will be addressed in no particular order, except as I can read the notes I scribbled during the hearings. We'll deal with one major--perhaps all-encompassing--topic in this post.

Sotomayor was unwilling or unable to offer anything but a grade school account of what judges do. They only look at the facts and apply the law. They make no law and they make no policy. The legislature does that. The judges simply apply the law and policy already made by the legislature. Or they apply precedents. And precedents are apparently nothing more than the judges' past applications of law and policy pre-determined by the legislature.

Can Sotomayor possibly believe that the role of judges is so simplistic? Can she possibly believe that law and policy are so clear and consistent and dictate one particular result in cases that come before appellate judges? Can she possibly not understand that many cases that come before appellate courts, and virtually all that come before the Supreme Court, have no pre-determined result? That they can legitimately be decided in more than one way? That there are virtually always law and policy and precedents supporting each of the different possible results? That judges, and especially Supreme Court Justices, must pick and choose among the law and policy and precedents? That judges, and especially Supreme Court Justices, choose (usually with disagreements among them) which law and policy and precedents will prevail over the others? That in doing so they are creating new precedents? And that in doing so thay are necessarily making law and policy? (That at the absolute least, this is true for landmark decisions?)

Is it really possible Sotomayor believes anything as simplistic as she claimed? Really possible that she does not understand the reality of judge-made law and policy? There are 2 possibilities. Either she really believes what she was saying, or she does not. It's hard to say which would be worse.

Of course the reality of judges making law is understood by every serious judge and student of the judicial process. Sotomayor's own supposed judicial hero, Benjamin Cardozo (who was the Chief Judge of New York State's high court before his tragically short tenure on the Supreme Court) recognized judge-made law as a given. He then proceeded to deal with the real question--i.e., the implications of that given. Oliver Wendall Holmes, another of America's greatest judicial figures (and Cardozo's predecessor on the Court), had previously done the same. So too have countless other jurists and judicial scholars.

But Sotomayor was insisting--repeatedly, till ad nauseum--the opposite. In doing so, she avoided having to explain the judicial role in terms more sophisticated than 3d grade social studies. (She didn't even demonstrate that she could have.) And she helped to keep public discourse about the judiciary at the lowest pssible level. More than that, she helped to keep the American public--as well, apparently, as many Senators--misled and blind about what judges, especially those on the Supreme Court, actually do.

In the next posts we'll look at some other topics addressed by Sotomayor. E,g., gun rights, "fundamental rights," the Ricci case, affirmative action, the right to choose, and the right to privacy. Most of them can be dealt with more briefly than than "Judging." So we should be able to cover more than one at a time.