The Sotomayor Nomination, Part I
July 9, 2009
Questions and Answers:
Nomination to the Supreme Court (2009)
- Remarks upon the Announcement of Sotomayor's Nomination, May 26, 2009
- Judiciary Committee Questionnaire, June 4, 2009
- Supplement to Judiciary Committee Questionnaire, June 19, 2009
- Letter from Judge Sotomayor, re: Belizean Grove, June 19, 2009
Nomination to the Court of Appeals for the Second Circuit (1997-1998)
- Judiciary Committee Questionnaire, part 1, 1997
- Judiciary Committee Questionnaire, part 2, 1997
- Transcript from Judiciary Committee Hearing, September 1997
Nomination to the District Court for the Southern District of New York (1991-1992)
- Judiciary Committee Questionnaire, 1991
- Addendum to Judiciary Committee Questionnaire, 1991
- Transcript from Judiciary Committee Hearing, June 1992
- Judge Sotomayor's Nomination to the Supreme Court, Senate Judiciary Committee
- "Reports on Judge Sotomayor's Record," SCOTUSBLOG, July 7, 2009
I'll start with a question that is really about framing the discussion, planning to turn to the substance of Judge Sotomayor's views in later posts: Does anyone believe that the current confirmation process is actually producing a fair assessment of nominees? If you do, don't you find it telling that groups on both the left and right have groups with press releases at the ready to blast any nominee of the opposing party as an unprincipled activist hack? If you think as I do that the attacks on John Roberts and Sam Alito were scurrilous and outrageous, do you really think that what movement judicial conservatives are now saying about Sonia Sotomayor is really different in kind?
To pick up on a recurring epithet, is there really any substance to the label "activist"? When conservative judges invalidate gun regulations and campaign finance regulations—illustrating that constitutional rights don't somehow magically belong to the left—how is it that so profoundly different? Before you answer that the Second Amendment is clear and campaign finance lies at the electoral heart of the First Amendment, be prepared to explain the Court's punitive damage jurisprudence as non-activist, and recognize that the scope of the right to bear arms is genuinely and fairly contested and so is the First Amendment's application to money rather than pure speech. Isn't the actual debate over how to interpret particular constitutional provisions, so that pejorative labels don't take us very far?
Don't get me wrong: Sonia Sotomayor and Sam Alito are smart, ethical judges who went to Princeton and Yale, but beyond that have some very different views on the law. Those differences are critical, and they ought to be the subject of real discussion and debate. (If I can put a plug in here, that's what the Federalist Society facilitates better than any other organization.) But caricature is the too-easy way out.
So I'm not calling for unilateral disarmament in the war of ideas by the right. To the contrary, the ascendancy of originalism and similar philosophies that have turned back the tide of Warren Court-era jurisprudence has resulted from articulating a better substantive argument. The effective critique has not been that Earl Warren, Thurgood Marshall, and William Brennan were soft-on-crime reverse racists, but that they were grossly wrong on the merits and in their view of the proper judicial role.
Ironically, by lobbing inflammatory attacks on Sotomayor that are easily refuted, her critics legitimize the same kind of outrageous claims that were made against Roberts and Alito. And around and around we'll go, in a race to the bottom of idiocy and hyperbole that distracts us and detracts from the profound debates that have proved so powerful and important over the past ten years or so.
President Obama's nomination of Judge Sonia Sotomayor offers the opportunity for an important public debate over the proper role of the Court in our constitutional republic. If senators use next week's hearing to engage in that debate, here are some issues that should be front and center:
1. In defending his vote against the nomination of Chief Justice Roberts, then-Senator Obama declared that it's proper for justices to resort to their "deepest values," "core concerns" and "the depth and breadth of [their] empathy" in deciding cases, and that in "difficult cases, the critical ingredient is supplied by what is in the judge's heart." In campaigning for president, Obama announced that his criterion for selecting justices was "who's got the heart—the empathy—to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old." Has Obama carried through on his selective "empathy" standard in nominating Sotomayor? Does Sotomayor's record, including her treatment of the New Haven firefighters and her "wise Latina woman" speech, signal that she is not committed to the traditional norm of judicial impartiality and that—especially when liberated from the constraints of precedent that a circuit judge faces—she would feel free to indulge her own preferences and biases in deciding what the law means?
2. In her various speeches, Judge Sotomayor has offered a seemingly boundless view of the role of judges, a view that would promote judicial supremacy at the expense of representative government. She has provided a shoddy defense of freewheeling resort to foreign and international law in interpreting the provisions of our Constitution and federal statutes. She has bizarrely celebrated "the importance of indefiniteness in the law" and the unpredictability that results when judges "develop a novel approach . . . that pushes the law in a new direction." What real constraints, if any, does Sotomayor recognize?
3. Judge Sotomayor rejects the American ideal of colorblindness—the ideal of equal opportunity for all in a legal regime that does not practice or permit discrimination on the basis of race. She instead has a deep-seated quota mentality that looks to equal results among racial groups and that uses racial quotas and other racial preferences to impose those results. How would that mentality manifest itself in her judicial rulings?
4. More generally, if Judge Sotomayor feels free to indulge her own preferences and biases, what are those preferences and biases? Does she, for example, threaten to provide what may well be the fifth vote to invent a constitutional right to same-sex marriage? Or to strike "under God" from the Pledge of Allegiance? Will she work to perpetuate and expand the Court's power grab on abortion? What light is shed by the various legal causes to which she dedicated her energies while a very active board member of the Puerto Rican Legal Defense and Education Fund? Where does her empathy lie on the death penalty, gun rights, campaign-finance restrictions, property rights, religious liberty, and so on? (To be clear: I would ordinarily respect the line between a nominee's policy preferences and her constitutional rulings, but if the nominee herself has a vision of the judicial role that denies the vitality of that line, she makes everything become fair game.)
In this post, I want to address two of Judge Sotomayor's more controversial statements: her claim that "the Court of Appeals is where policy is made" and her hope that "a wise latina woman with the richness of experiences would, more often than not, reach a better conclusion." These statements certainly fit within Michael Kinsley's classic definition of a gaffe—a statement wherein a public figure tells the truth. But are they disqualifying? Are they even especially troubling?
Let's start with the policy-making claim. Is it really controversial that appellate judges make policy? Of course, we have an official ideology that claims that judges do no more than enforce the law, but no one who seriously studies the matter thinks that the results in hard and controversial cases can be read directly off the legal materials. Indeed, the Supreme Court itself held in Gregory v. Ashcroft, 501 U.S. 452 (1991), that state appellate judges were outside the scope of the Age Discrimination Act because they were "appointees on a policy making level."
Consider, for example, the Supreme Court's jurisprudence on affirmative action. The cases that have applied strict scrutiny to affirmative action programs make no more than passing reference to the language of the Equal Protection Clause or the intent of its framers. Instead, the decisions are driven by the belief that "dividing us by race is inherently suspect because such classifications promote 'notions of racial inferiority and lead to a politics of racial hostility,' 'reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,' and 'endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.'" Parents Involved in Community Schools v. Seattle School Dist., 551 U.S. 701 (2007) (Roberts, CJ). This statement may be right or wrong, but surely it counts as a policy determination about the best way to handle race relations. If Justices did not make policy, we would not see the correlation we regularly observe in hard cases between their political positions and the results they reach. Indeed, if judges did not make policy, the confirmation process would not be as contentious as it is.
What about the "wise latina woman" comment? I'm not a big fan of identity politics, and I concede that this statement is more troubling. But let's look closely at what the statement really amounts to. Judge Sotomayor seems to be making two separate claims. The first claim is that in at least some cases, the experience of being a "wise latina woman" will have some effect on how a judge will think about the appropriate outcome. Again, one wonders why this assertion is even controversial. It should be obvious that a person's background and culture affect the way in which that person sees the world. Does anyone doubt that, say, a person raised in China in the nineteenth century would think differently about constitutional questions than a person raised in the United States in the twenty-first century? Recall that when Clarence Thomas was nominated to the Court his supporters made much of the fact that he was raised in Pin Point, Georgia, by a poor black family. This fact was relevant only if one thought that a background of this sort would affect his performance as a justice for the better.
This brings us to the second claim or, more precisely, "hope"—that decisions by a "wise latina woman" will be "better." Is it really surprising that Judge Sotomayor hopes that her own decisions will be better than decisions reached by someone else? Of course, people can disagree about whether the decisions are in fact better, but surely she is entitled to the belief that her own decisions are the right ones. It would be strange indeed if she thought that decisions reached by others who disagreed with her were better than her own.
Suppose then that a white, male Protestant judge said that he hoped that decisions by white male Protestants were better? This statement would indeed be offensive, but that is only because the contingent social meaning of statements made by majority and minority groups are not always symmetrical. When a member of a majority group makes a claim like this, it resonates with a history of systematically discounting the wishes and beliefs of a minority. There is no similar history of discounting the wishes and beliefs of the dominant majority.
I want to thank the Federalist Society for the opportunity to address the very important institutional, jurisprudential, and process issues involved in the Sotomayor nomination. Because I think that a robust debate will be more interesting to readers, I want to respond to one of the points made by Tom Goldstein and another by Professor Seidman.
In the opening post, Tom raises a very interesting question. Is there really much to be gained from confirmation hearings? The answer for the most part is no. As Ben Wittes has written in his book Confirmation Wars, we do not learn much about a nominee's views during the hearings. That is particularly true when the President is relatively unconstrained (i.e., no divided government, relatively high approval ratings, he is not approaching the end of a term in office, etc.), as President Obama is now. Thus, for the most part, the hearings under such circumstances really amount to futile questioning of the nominee about his/her jurisprudential views and opportunities by Senators to posture to and please sympathetic interest groups and constituents.
But I do not want to suggest that the hearings are useless either. Historically, the threat of confirmation hearings can be useful to filter out unqualified nominees. Although Harriet Miers's nomination had other troubles, Jan Greenburg suggests in her book Supreme Conflict that it was the threat of the hearings that ultimately led to Miers's withdrawal. There were lingering doubts in the administration that Miers could perform competently before the Senate Judiciary Committee. Despite attempts to label Sotomayor as unqualified, I think that that argument will go nowhere in the coming weeks, and I do not expect any serious missteps by her during the hearings. The hearings also provide a public-information function. With no televised coverage of the Court, it is the one opportunity in which all citizens get exposure to the work of the Court. While we can debate whether the hearings provide useful exposure to the work of the Court, there is no doubt it provides some exposure. Finally, it provides nominees with an opportunity to be heard and to answer the charges advanced by the opposition, which nominees cannot do prior to the hearings because they are not supposed to talk to the press. Although I do not expect Sotomayor to answer the difficult questions posed by her nomination because the "smart play" is to "bob and weave," it is this function that is most at play in the Sotomayor hearings.
It is in this regard that I respectfully disagree with Professor Seidman's characterization of the "wise Latina woman" comment. By breaking down Judge Sotomayor's comment into two separate assertions, I think Professor Seidman sets up straw men to defend. She did not say or suggest that a "wise Latina woman" would think differently about constitutional questions or that she hopes that her decisions would be better, but that a "wise Latina woman . . . would, more often than not, reach a better conclusion." As someone who takes text seriously, I take her remark at face value; what she is suggesting is that a judge who is a (wise) Latina woman will reach better conclusions. I have no doubt that, in some instances, a Latina judge would reach different conclusions, but I disagree that such a judge would reach a better conclusion as a simple product of a judge's racial or ethnic identity. In my opinion, that is why the White House quickly distanced itself (and its nominee) from those statements by calling them a "poor" choice of words. Although I hope to address the Ricci decision and her jurisprudence in later posts, it is my hope that Judge Sotomayor answers the question of what she meant by her repeated use of the "wise Latina woman" comment in a number of her speeches. My guess, unfortunately, is that we will not learn too much.
Professor Stras and I agree that Judge Sotomayor will inevitably reach different decisions because of her ethnicity and background. (Professor Stras says he has "no doubt that in some instances a Latina judge would reach different conclusions.") So our disagreement comes down to whether there is something wrong with Judge Sotomayor saying that these different decisions are better than the ones she otherwise would have reached. Presumably, Professor Stras thinks that his post is better than it would have been if he took the opposite position. Why, then, can't Judge Sotomayor think that her decisions are better than they would have been if she had written them differently? I'm afraid I just don't get what the big deal is about this statement.
With regard to the confirmation process, it's true, of course, that at least some of the questioning by the Senators is ignorant, stupid, and just plain embarrassing. Politics is a messy business, and I wish our representatives were better than they are. Then again some Supreme Court decisions are also ignorant, stupid, and just plain embarrassing. And don't get me started on law review articles. None of this means that law review articles, Supreme Court opinions, or confirmation hearings should be done away with. What we need to do instead is to praise thoughtfulness and condemn stupidity wherever they appear.
To the extent that confirmation hearings address the proper role of the Court—a debate that has taken shape over the last generation between judicial activism and judicial restraint—they are helpful. The debate is real, the stakes are high, and Americans need to learn more and decide which model is correct.
But the Sotomayor hearings are likely to be unhelpful. Why? Because she is likely to make statements, like those the White House has already put out, that blur the debate and make her sound like a proponent of judicial restraint (which Americans already support by hefty margins). Her record tells us otherwise.
In her extrajudicial statements and her decisions, Judge Sotomayor has made clear that she practices unashamedly what is fairly called "judicial activism." You can call it the "living Constitution," "judicial empathy," "legal realism," or "judges using their own personal notions of justice to decide cases," but "judicial activism" is a convenient shorthand.
Judicial activism occurs when judges substitute their own notions of "justice" for what the law actually says. Such notions can spring from the fact that the judge is a Latina woman who says this inevitably colors the "facts she chooses to see" in a case. A judge, for example, who chooses to ignore facts that get in the way of her passion for racial preferences and quotas and who thinks that her gender and ethnicity lead her to make "better" decisions than a white male would.
It's an admirable attempt to defend her by saying that believing her decisions are the right ones is just the opposite of thinking that they're the wrong ones. But it's clear in the context of the La Raza article and the numerous other times she made the same claim—not off the cuff but in prepared remarks—that it was no tautologous statement that she thinks she makes the right decisions, but a manifesto of ethnic, gender, and, above all, personal bias.
Such decision-making puts the judge above the law. The law becomes the servant of the judge, and not the other way around. That's contrary to the whole point of a written Constitution, an independent judiciary, and government by the consent of the governed that was the whole idea of America. Self-government is diminished when judges give free rein to their own personal views, however well intentioned their agenda may be and however bright the judges may be.
I disagree that Justice Thomas, or anyone who supported his nomination, thought that his being born into poverty in the deep South, or even personally experiencing Jim Crow and the sting of racial discrimination, made him a better judge. He is a great judge because of the force of his reasoning and his adherence to the written Constitution and laws. His personal story is something the American people are interested and entitled to hear, and it's an inspiration.
The same is true of Judge Sotomayor: her personal story is inspiring. (Interesting aside: in his memoir, My Grandfather’s Son, published in 2007, Justice Thomas said his story was that of "an ordinary man to whom extraordinary things happened." In her 2009 White House acceptance speech, Judge Sotomayor said, "I am an ordinary person blessed with extraordinary opportunities and experiences.")
Lieutenant Ben Vargas of the New Haven Fire Department was living his own American dream, until he achieved the sixth-highest score on a promotion exam, only to be denied the promotion and, as The New York Times reported, "ridiculed as a token, a turncoat, and an Uncle Tom" for wanting his work on the exam to count for something.
Like Judge Sotomayor, Lieutenant Vargas is a Puerto Rican American. He's on the witness list for the hearing. His "background and culture" are similar to Judge Sotomayor's, but his testimony should be a powerful refutation of the Sotomayor ethnicity-as-destiny view. He wants his children "to have a fair shake, to get a job on their merits and not because they're Hispanic or they fill a quota. What a lousy way to live."
Judicial conservatives, like Edward Whelan and Wendy Long, think that empathy should have nothing to do with constitutional decision-making. Apparently, the Republican minority on the Senate Judiciary Committee disagrees. Why else would the Senators add to the list of witnesses testifying against Judge Sotomayor a New Haven firefighter whose promotion was invalidated when a Second Circuit panel including Judge Sotomayor upheld the invalidation of the exam? I doubt that this firefighter has much to say about the complex legal issues raised by his case. Surely, he was chosen to testify because he is a sympathetic figure and because opponents of Judge Sotomayor's nomination think that she should have been more empathetic toward him.
Be that as it may, the "empathy" charge deserves a response. Here it is. If all constitutional decisions were purely "legal"—if they depended upon nothing more than the mechanical application of "rock solid" legal materials—then perhaps empathy would be out of place. But when the legal materials run out, as they often do in difficult cases, empathy plays an important role.
Here's an example in a case from last term. Many years ago, an Alaska court convicted William Osborne of sexual assault and attempted murder. The state had, and to this day has, within its possession a DNA sample that would conclusively establish his guilt or innocence if only someone would test it. But for reasons that it has never explained, the state has stubbornly refused to test the evidence itself or to provide it to Osborne so that he could test it at his own expense. Osborne claimed that this refusal violated his right to due process of law, but Chief Justice Roberts, writing for a 5-4 majority of the Court, held that his rights were not violated.
In reaching his decision, Chief Justice Roberts relies on neither the "original public meaning" of the Due Process Clause nor on binding precedent to reach his decision. He can't be blamed for this—the framers were hardly thinking of DNA evidence when they wrote the Due Process Clause, and there simply is no prior precedent that covers this problem. Instead, Roberts makes a policy argument. He points out that 46 states—but importantly not Alaska—have reasonable procedures in place for DNA testing. In his judgment, the political process is doing a pretty good job solving this problem, and there is therefore no need to constitutionalize it.
Roberts' opinion is not very convincing. Usually the fact that most other states provide protection is a reason for reining in the outliers. Somehow, the fact that Osborne might have gotten relief if he were somewhere else becomes a reason for not providing it to him where he is.
Would the Supreme Court's decision-making process have been improved if the Justices in the majority had tried to empathize with someone serving time for a crime he didn't commit who is refused, for no good reason, access to evidence that would set him free? I think so. Osborne is a case where there is mindless bureaucratic intransigence on one side and a possibly innocent, suffering human being on the other. Especially in cases where the law runs out, it ought to make a difference that there are real people with real problems whose lives are crucially affected by what the Court does.
Professor Seidman supposes that the Republicans’ inclusion of New Haven firefighter Frank Ricci on their list of witnesses indicates that they believe that empathy should play a role in constitutional decision-making. I’m not going to read the minds of Senate Republicans. I will simply note that Frank Ricci and his fellow witness, Lt. Ben Vargas—a Hispanic—may usefully illustrate the ugly flip side of selective empathy towards favored litigants: antipathy towards disfavored litigants. So their testimony will, I hope, serve to make the case against empathy in judicial decision-making.
What happens 'when the legal materials run out'? Quite simply, judges then have no authority to override democratic enactments. (Where, pray tell, would the authority come from?) Might that mean that suffering will occur? Unfortunately, the answer in an imperfect world is, of course, yes. But the American experiment rests on the proposition that, within the broad bounds of the Constitution, representative government is the best means to promote justice. Judicial imperialism instead infantilizes citizens and encourages irresponsibility.
It's also worth noting that the judicial exercise of empathy has a spotty track record, as both Dred Scott and Roe v. Wade might reasonably be perceived as having produced a monumental amount of suffering and evil.
Louis is correct that proponents of judicial restraint believe empathy is an improper basis for constitutional and all other legal decision-making. Applying the law fairly to all is far more reassuring than selective "empathy" as a basis for judicial action.
But Louis's attempt to pit judicial restraint against the calling of Ben Vargas or others as witnesses at the Sotomayor hearings is incorrect, for several reasons:
1. As Justice Alito said in his Ricci concurrence (responding to Justice Ginsburg's assertion that Vargas and the other firefighters who were discriminated against on the basis of race "understandably attract this Court's sympathy"): Vargas and others have no right to demand sympathy. "What they have a right to demand is evenhanded enforcement of the law—of Title VII's prohibition against discrimination based on race."
Opponents of Judge Sotomayor's nomination do not think she should have been more "empathetic" toward him. They think she should have applied the law evenhandedly, and they believe, as most Americans do, in the color-blind ideal of justice under our Constitution and laws.
2. Ben Vargas may not offer the same testimony that a law professor would offer on the Ricci case (thank goodness), but he'll probably say more about the "complex legal issues raised by the case" than Judge Sotomayor will. His testimony might show that they're not all that complex after all. His testimony might underscore that having a view on whether our Constitution and laws are properly color-blind is not the special province of those with J.D. degrees.
3. Moreover, witnesses testifying before the Senate are not judges deciding cases. If Senators want to highlight empathetic witnesses, that is fine, and no contradiction of judicial restraint.
Ed Whelan says that when legal materials run out, "judges have no authority to override democratic enactments." I assume, then, that he is an opponent of the current Court's affirmative action jurisprudence. There is not one word in the Fourteenth Amendment addressed to affirmative action, and, to my knowledge, no opinion by a Justice on the Roberts Court has cited either text or original understanding in support of its decisions. The intent of the framers of the Fourteenth Amendment was to limit the power of the Supreme Court to invalidate the nineteenth century equivalent to affirmative action. It follows, I think, that judges have "no authority" to override democratically enacted affirmative action measures. So you think these cases are wrongly decided, right, Ed?
Ed is right that judges under our Constitution simply lack the prerogative to override the decisions of the people through their elected representatives.
That does not mean representative democracy is perfect, but it calls to mind Churchill's observation that "democracy is the worst form of government except all the others that have been tried"—including judicial oligarchy.
I have had this debate with Doug Kmiec, about whether "the law runs out": he said it does, and that justifies the Obama "empathy standard."
I disagree. I don't think the law ever does run out.
It is only harder to analyze sometimes. The text may not be precisely clear. One may have to look at historical interpretation of similar clauses, or at history itself. One may need to research the principle at stake and work hard to vindicate, but not twist, it, responsibly using the tools in the legal tool kit. That is the hard part of being a judge; it's not an excuse for a judge to put her thumb on the scale in a difficult case and use her own views, instead of every resource of the law itself.
I want to start this post by noting a point of both agreement and disagreement with Tom Goldstein, partially influenced by our prior public discussions on the Sotomayor nomination on SCOTUSblog. I tend to agree with Tom that labels such as "judicial activist," "strict constructionist," and "empathetic" are not useful ways to frame the debate over a judicial nominee. For instance, despite numerous attempts by scholars to define and even empirically measure judicial activism, I remain unconvinced that the measure is truly useful. In part, that is because it is very difficult to get scholars and attorneys to agree on a universal definition of judicial activism. Both sides of the aisle tend to use that label when it fits their purposes, and many of the studies I allude to above do not define the term identically. I have been equally critical of President Obama's use of the "empathy" label as well. President Obama seriously miscalculated when he stated that he was searching for a nominee with empathy "to understand what it's like to be poor, or African-American, or gay, or disabled, or old." That was an invitation for critics of the nomination to conduct a probing inquiry into whether Judge Sotomayor (or whoever was the eventual nominee) could apply the law with impartiality.
It is in that spirit that I still disagree with Mike Seidman's characterization of the "wise Latina" comment. He continues to suggest that Judge Sotomayor's statement was about her own decisions being better than those of others, and those of a wise Latina woman being different from other judges. But her statement was much stronger than that in my opinion: the text of her numerous speeches on the subject suggest as a normative or evaluative matter that the decisions reached by a wise Latina woman are better (or at least ought to better) than those reached by judges with different ethnic or racial backgrounds. I personally find that assertion objectionable on a number of grounds, not the least of which is that there are many judges in the federal judiciary, Latino and otherwise, who are excellent judges and that I greatly admire and respect.
I also want to highlight a point of disagreement that I have with Tom. Tom has dismissed attacks on Judge Sotomayor based on Ricci v. DeStefano, largely because the presence of four dissenters on the Supreme Court in the case demonstrates that the lower court opinion (in which Judge Sotomayor was on the panel) was not "outlandish" and "put[s] her in line with Justice Souter." Although I disagree as a substantive matter with the Second Circuit panel's disposition of the case, the real issue I have is the way in which the panel "dodged" the case. I find the Second Circuit panel's summary disposition of the case to be quite objectionable. I spent the last day or so carefully considering the legal and factual questions presented by Ricci in advance of a SCOTUS Roundup that I am presenting next week. Put simply, the conflict between the disparate impact and disparate treatment provisions of Title VII presents a very complicated legal issue. In my opinion, Ricci was one of the most difficult cases of the Term. (I therefore disagree with Wendy that the case might not be "all that complex after all.") As the majority and Justice Scalia recognized, it required the Court to reconcile two provisions of Title VII that are potentially in conflict and that were enacted by Congress at two different times (i.e., the Civil Rights Acts of 1964 and 1991). The fact that the Second Circuit panel could not agree on a single rationale and that the case was difficult was all the more reason to publish an opinion, even if it would have been fragmented. Judge Cabranes and five of his colleagues on the Second Circuit apparently agreed: "The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled." To me, this raises a question about Judge Sotomayor's judgment.
Although I agree with Jonathan Adler that this critique, standing alone, is not disqualifying, I do hope the Republican Senators probe her motivation for agreeing to a summary disposition of the Ricci case. In the best light, it seems like a very questionable decision.
The "equal protection of the laws" text of the Fourteenth Amendment seems addressed to the principle at issue in the phrase "affirmative action" that was coined about a century later.
The principle of the Civil War amendments was an extension and vindication of the founding principles expressed in the Declaration of Independence, which were principles of color-blindness, as the first Justice Harlan noted in Plessy.
There is nothing in the original meaning of the text of the Fourteenth Amendment that mandates or authorizes race-conscious (i.e., racially discriminatory) policies, except perhaps in the limited context of remedying obvious race discrimination.
Judges have both authority and an obligation to override democratic enactments that violate the Constitution. The Framers of the Fourteenth Amendment did not change this.
David makes a good point, which is reflected in Justice Scalia's Ricci concurrence: a general principle of color-blindness, although not inherently "complex," can become quite complicated indeed when one tries to reconcile disparate impact under Title VII with equal protection of the laws under the Constitution (not to mention the internal conflict within Title VII itself between disparate impact and disparate treatment).
And if Judge Sotomayor had wrestled with these issues and with the applicable precedents in her disposition of Ricci, instead of trying to sweep the firefighters' claims under the rug with a summary order, then converting it to a per curiam that incorporated a district court opinion—as Judge Cabranes noted, a "perfunctory disposition" that "rest[ed] uneasily with the weighty issues presented" in the case—she would be less vulnerable to criticism.
But she did try to bury the claims, in what amounts to judicial malpractice.
And it is not the only time she did so: she used similar perfunctory dismissals in Didden concerning property rights and in Maloney concerning Second Amendment rights, for example.
These are very important areas for Senators to examine, not only for the merits of the underlying cases, but for her conduct as a judge. What emerges is a picture of a judge who tries to dispose of tough, controversial issues by just avoiding them: a judge who jumps to conclusions that suit her own personal sense of justice, who seems fearful or incapable of explaining her reasons when others are justifiably critical of her methodology and outcome.
This goes to the heart of what kind of judge, and how good a judge, she is—something Senators must surely take into account in discharging their constitutional obligation of "advice and consent."
I know this is getting pretty far afield from what we are supposed to be talking about—the Sotomayor confirmation process—but I can't resist responding to Wendy's last post about affirmative action. The Fourteenth Amendment does not say a word about color blindness. It is about as certain as these things ever are that the public meaning and intent of the framers of the Fourteenth Amendment was not to make color blindness a constitutional requirement. By order of the Congress that passed the Fourteenth Amendment, the galleries of the chambers were segregated by race. A federal statute also required segregated schools in the District of Columbia. So what Wendy is left with is a claim that somehow the general principle of equality requires colorblindness even though that is not how the principle was understood by those who wrote and ratified the Fourteenth Amendment. Fair enough, but I think the general principle of equality mandates gay marriage. I'd be interested to know why Wendy thinks that invalidating democratically enacted statutes that prohibit gay marriage is judicial activism, but invalidating democratically enacted statutes that mandate affirmative action is not.
I'm happy to answer the question you directed to me about the Fourteenth Amendment and racial preferences. I'll note first, though, that you didn't answer my question, perhaps because I buried it in a parenthetical and didn't address it expressly to you, so let me try again:
In cases "when the legal materials run out" (to use your phrase), where would judges derive the authority to override democratic enactments? Doesn't their authority derive entirely from those legal materials? How in a system of representative government can judges have willy-nilly authority to impose their own sense of empathy to override democratic enactments?
Now, in answer to your question:
1. Your question, in referring only to "text or original understanding," seems to suppose that the legal materials on which judges may properly rely does not include precedents. I'll note, for example, that Chief Justice Roberts's 2007 opinion in the Seattle schools case relies on the Supreme Court's colorblind understanding in 1955 in Brown II of its 1954 ruling in Brown v. Board of Education. I'll note more broadly that Brown has come to be widely understood as standing for a proposition far broader than its narrow holding and for vindicating Justice Harlan's colorblind dissent in Plessy v. Ferguson.
You say that there is "not one word in the Fourteenth Amendment addressed to affirmative action." But surely the phrase "equal protection," in conjunction with Brown and other precedents barring discrimination against racial minorities, may operate to do so.
Let me hasten to add that I recognize that the question of how originalism or any interpretive methodology accommodates arguably discordant precedent (or discordant understandings of precedent) presents thorny questions. My limited point here is to dispute your assertion that there are no "legal materials" that support the Court's holdings on racial preferences.
2. If we set aside precedent, and if you're correct that the Court's racial-preferences cases are not faithful to the original meaning of the Fourteenth Amendment, then I would of course agree that those cases, insofar as they rely on the Fourteenth Amendment, are wrongly decided. (I haven't adequately studied the evidence bearing on the original meaning of the Fourteenth Amendment, so I don't have a settled view on whether you're correct.)
Not to keep going further afield, but a quick response to Mike (sorry!) on this point:
The reason these are different is that homosexuality is not a protected class for purposes of equal protection, and race is. Racial equality was the whole purpose of the Fourteenth Amendment.
And, as I said, if the "affirmative action" is tailored to remedying outright race discrimination, then such a democratically enacted measure need not be invalidated on equal protection grounds. Racial segregation is properly understood to be racial inequality, which is the whole point of the long and grueling jurisprudential march to overcome the "separate but equal" myth. The folks who segregated the Senate galleries at the very time of the Fourteenth Amendment were still captive to that myth; they hadn't yet come to grips with the truth that "separate" is not "equal." But it stretches both text and history to say that the Fourteenth Amendment permits racial preferences in the absence of discrimination.
The Constitution was specifically amended to correct for racial equality; it has never been specifically amended to do anything with respect to sexual orientation or same-sex marriage. In the absence of constitutional amendment, the Constitution is silent on the subject. Where the Constitution is silent, then the people can make whatever laws they want to on the subject, or amend it themselves.
Apologies again for the frolic and detour.
Thank you for your response, Ed. And I'm happy to respond to you.
It's true that precedent forms part of the legal materials that courts work with. It's not true, though, that the Brown precedent stands for the proposition that affirmative action is unconstitutional or that colorblindness is mandated in the affirmative action context. On the contrary, the justices who decided Brown also mandated color-conscious remedies for segregated schools. The only precedent that makes affirmative action constitutionally questionable is the precedent that I am criticizing.
Now to respond to your question: The way that you put the question presupposes that there is a privileged status for democratic outcomes. But democracy itself is not constitutionally compelled. On the contrary, the framers of the Constitution were intent on limiting democracy and were strong believers in natural rights, which could not be invaded by democratic majorities. The authority that judges have to enforce their views when the law runs out comes from Article III, which mandates that they decide cases or controversies. Virtually all complex and contested cases or controversies that reach the Supreme Court—cases about, say, segregated schools, or affirmative action, or the right to test DNA evidence—cannot be decided simply by reference to constitutional text and prior precedent. It's inevitable, therefore, that if the Justices are to do their jobs, they must bring to the table their own sense of justice and, yes, empathy.
Although I have enjoyed the discussion of the Fourteenth Amendment, I would like to pose a question (or perhaps a series of questions) to get us back on track. I have struggled over the years with the question of whether nominees should be required to directly answer substantive legal questions posed by Senators. Of course, such questions will only have bite if Senators are willing to vote against a nominee because of a failure to answer their questions, which to this point has not been the case. At one point, I felt that answering such questions, especially if they pertained to potential cases before the Court, was improper. Now I am not so sure given my own research over the last two years, particularly because confirmation hearings do not seem to give us much useful information about nominees. Given that we did not have confirmation hearings until the twentieth century, what are the obligations of nominees to answer questions? Should nominees be required to answer questions about past cases? What about questions involving issues that may come before the Court in short order?
The question of the proper scope of Senate questioning, or more precisely, the nominee's answers, is a good one.
Senators can obviously ask whatever they want to, and some like to use their time for monologues rather than questions (though with Senator Biden off the dais, the proportion of question time to monologue time might rise somewhat). Nominees similarly have to decide how fulsome an answer to give, if any, and they will be judged on that—unless the answer is just a conclusory statement in tension with the nominee's record. In that case, it is better to judge the nominee by her record and not the self-serving contradictory testimony.
I think that the "Ginsburg standard" (coined based upon RBG's 1993 hearings, when she said she would give "no hints, no forecasts, no previews" regarding how she might rule on cases that may come before the Court) is generally correct, but only if there is a basis to assume in good faith that the nominee will, as the Constitution and her statutory judicial oath require, be impartial in dispensing justice "without respect to persons."
It preserves judicial impartiality and independence for a nominee to decline, in Senate hearings, to opine in advance about cases and issues that might come before her.
First, offering such hypothetical opinions forces the nominee to commit to positions she might not hold once she has read briefs and records, once the facts and the law have been properly teed up before her in a case or controversy. This can fuel false expectations on the part of future litigants and the public.
Second, extracting such positions gives Senators a chance to substitute themselves for Justices, effectively "deciding" future cases by voting for or against a nominee based upon their commitment to vote a certain way in a future case.
All of this is improper.
The problem is one that Ed has already alluded to: what would otherwise be a proper refusal to answer such questions breaks down when the nominee, and the President who has nominated her, don't even believe in judicial impartiality in the first place. When we know from the outset that she's not even going to try to be impartial, there's no impartiality to preserve, and we had better find out exactly what those biases and empathies are that will be the basis for her decisionmaking. Then, she does have an obligation to answer such substantive questions.
Judge Sotomayor will try to invoke the "Ginsburg standard." She is not entitled to do so, because she and this President have put her judicial sympathies and prejudices on the table.
There is really no way to "require" a nominee to answer a given question, although arguably she is required to answer truthfully by the fact that she is sworn in at the beginning of the hearing. Accordingly, for example, if a nominee says "I decline to give an opinion on the constitutionality of a law prohibiting abortion on the basis of gender selection because such a case may come before the Court," or "I decline to state my own personal views as to whether unborn human beings have any rights because my own views are not relevant to my judicial decisionmaking," such statements would seem to comport with both propriety and truthfulness.
But if, for example, Judge Sotomayor were to respond, as she did to Senator DeMint on the latter question, that she "has never thought about it," her veracity would become an issue, given the number of briefs that the PRLDEF filed on the abortion issue during her association with it, and given her legal musings about the rights of many other groups based upon status.
I think that Wendy's position amounts to saying that Democratic nominees have to answer these questions, but Republican nominees don't. I certainly don't agree with that. On the other hand, I don't see a reason why nominees from either party should be permitted to avoid them. If asked about a specific case, I think that a nominee should say something like the following: "If this case came before the Court, I would have to read the briefs, listen to oral argument, hear out my colleagues, and think about the issue harder than I have so far. I certainly cannot make a promise or a commitment as to how I would vote. What I can do is tell you what my preliminary thoughts are about the matter. Here they are."
I find myself agreeing with Mike on the scope of the questioning at confirmation hearings, though perhaps I would not go as far as he would. When I first started researching the federal courts about six years ago, my view was very much in line with the "Ginsburg standard" due to the ethical risks raised by a nominee who pre-commits to a particular position before being provided with briefing and a concrete case or controversy. But after reading every confirmation hearing since Justice O'Connor's and spending approximately eighteen months researching judicial appointments, my view has changed. I must also concede that my numerous discussions about the issue with my good friend, Mike Paulsen, have influenced my thinking on confirmation hearings too.
Since Robert Bork's confirmation hearing in 1987, the hearings have pretty much been uniformly unhelpful in discovering a nominee's views about constitutional law, statutory interpretation, or even stare decisis. At least one Senator has referred to the hearings as a "Kabuki dance," and others have made similar observations. Of course, the futility of questioning is mostly attributable to Senators who are unwilling to vote against a nominee who refuses to answer questions. If the "smart play" is to refuse to answer questions, then I do not blame any nominee who accedes to that strategy. After all, it is the smart political move, and it is not speculative to assume that every nominee wants to be confirmed.
As a normative matter, I think that Senators should ask nominees questions about past Supreme Court decisions, perhaps limited to those decided over the past five years or so. With the briefs and opinions available on Westlaw and Lexis, I see no reason why nominees cannot comment on Supreme Court cases that have already been decided. The Justices themselves answer questions about past Supreme Court cases when they visit law schools and give speeches to various groups. Some, like Justice Stevens, have even commented publicly on past cases on C-Span and other television programs. No one argues that their comments somehow pre-commit them to rulings in future cases or that their commentary on such cases is ethically improper. If the risk is that an issue may come before the Court again, as Wendy alludes to in her general support for the "Ginsburg standard," then perhaps we can limit questioning to only those cases that were decided 6-3, 7-2, 8-1, or 9-0 over the past five Terms. (The rationale would be that those cases are unlikely to come before the Court again in the near future.) Even asking a nominee questions about cases of statutory interpretation can reveal a lot about how a nominee thinks through legal questions. In their judicial opinions and memoranda, nominees can duck difficult legal questions (i.e., Judge Sotomayor and Ricci v. DeStefano), but in the bright lights of the confirmation hearings, it can be more difficult to avoid directly sparring with Senators if there is an enforceable norm of answering such questions directly. Perhaps nominees could be given a list of 10 cases that have been decided over the past five Terms, five submitted by the minority party and five submitted by the majority party, to consider and think about in advance of the hearings. Of course, I realize that much of this is nothing more than a pipe dream given the politics of judicial appointments, but my point is that I do not see any valid reason why Senators cannot ask more difficult legal questions during the hearings.
I'm new to this discussion, so let me start by thanking the Federalist Society for the invitation; I'm looking forward to this. Let me jump right in on this interesting matter of what, if any, useful and interesting questions are possible for Judge Sotomayor.
I find well-argued, but ultimately don't buy, Wendy's argument that Judge Sotomayor waived the usual deference to nominees by indicating bias. Deference-unless-bias inquiries are pretty pervasive in the law, including in areas as far afield as corporate law, so it's a plausible way to analyze a situation ordinarily calling for deference. But I don't think we can conclude that, as Wendy asserted, "the nominee, and the President who has nominated her, don't even believe in judicial impartiality . . . [W]e know from the outset that she's not even going to try to be impartial." I simply don't think we can so conclude from (a) the president saying empathy is important for judges and (b) the nominee saying a Latina would have a different perspective that would help her reach better decisions (and one fuller text of the speech shows that the context in which she was speaking was discrimination law). I suppose you can take the pure originalist view that any judge who goes beyond the text and its original context is engaged in judicial impropriety, but I don't think there's much mainstream support for that view; if there were, the calls for impeaching Justice Kennedy for citing international law would be a serious threat, not a fringe fantasy.
I think there are interesting questions that could be asked, but I fear that not many Senators commit to probing nominees successfully. In 2005, a professor friend of mine drafted some very thoughtful questions for a Senator . . . who was persuaded to start his questioning of Judge Roberts with something about Hurricane Katrina—obviously not a judicial matter, but certainly a matter on which a Senator might like to get some press. I drafted a few questions too for Judge Roberts (none of which were used either), with the goal of asking questions about one area of the Constitution based on another area in which the nominee was on record. Then-Judge Roberts wasn't on record as to much, but his law review note espoused a broad, strikingly non-originalist interpretation of one constitutional provision. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978), held that the Contracts Clause barred a state from increasing certain employer pension duties; Justice Brennan in dissent gave the oddly originalist argument that the Contracts Clause was just about protecting creditors, and the Roberts note responded with a manifesto against originalism:
While the major state interference with contract prior to the adoption of the clause did consist of relieving debtors of obligations to their creditors, it does not follow that the Framers intended the clause to be limited to this specific problem. The Framers' intent was probably a broader concern[,] . . . [and] [t]he great clauses of the Constitution are to be considered in the light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time.
Roberts having gone on record with an anti-originalist view of one clause, I thought it would be fair game to ask (a) if he still adheres to the views in that note, and (b) if so, whether he takes a similarly non-originalist view of the Fourteenth Amendment, etc.
So I think that if a nominee is likely to say "I won't opine on XYZ," it's basic cross-examination of deposition-taking skill to (a) find an area, any area, where the nominee is on record, and then (b) ask questions about whether that same viewpoint or principle would apply in another area. I haven't had occasion to undertake a complete view of every Sotomayor writing ever, but one line of inquiry about empathy seems promising. If one's gender and race can give an added perspective in discrimination cases (the context of the "wise Latina" quote in one broader excerpt of her speech that I saw), it seems like fair game to ask (a) whether discrimination cases are the only ones in which one's life perspective would play a part (so a Senator could ask about criminal cases, commercial cases, etc.), and (b) whether race and gender are the only experiences that can help one reach wiser decisions (and if not, then what other areas actually have, in her view, helped make her a wiser judge).
I think Mike's phrasing, which makes clear that the nominee is not making a commitment or forecasting a judgment on a particular case or issue, works well. David's points also make sense, and I would say that such questions could—and should—be answered by all nominees, not just those nominated by one party or the other. And in fact, I think nominee John Roberts did go further than Ginsburg in giving his views of previously decided cases and in summarizing Supreme Court jurisprudence in various areas.
I still think, however, that Sonia Sotomayor has to answer a whole separate category of questions that have to do with two critical, and related, problems with her nomination:
1. Judging based on personal bias. Sotomayor carries into the hearings today a very heavy presumption that she cannot uphold her judicial oath of impartiality. This problem is an entirely different order of magnitude than other liberal judicial activists, including Anthony Kennedy and even Ruth Bader Ginsburg, with her long record of far-left extremist activism before she took the bench, because these individuals had not, before their nominations, embraced a mode of judicial decision-making premised on personal bias. I am speaking not only of the "wise Latina" comment, but of the many other statements Sotomayor has made that are even worse. The text all around that comment in the La Raza article is far more damning than the one comment. When Judge Miriam Cedarbaum points out to Sotomayor that nine white men decided Brown v. Board of Education, Sotomayor can't even bring herself to give them credit: she says it's because people of color made the arguments. Does anyone else find this shocking? Do we think that it's OK for a judge to "choose to see" only the facts in the case that she finds personally congenial?
I may not have argued my point as well as Scott gives me credit for; it is not so much about "deference" as about "presumptions" and burden-shifting. I think it is reasonable—was reasonable even with Ginsburg—to presume a judge will adhere to the aspiration of impartiality and being faithful to the oath to dispense justice "without respect to persons." But Sotomayor today carries the opposite presumption and accordingly the burden is on her and the Obama administration to overcome it—and by more than conclusory promises to "put the law first." Given the pervasiveness of her record on this point, I frankly cannot see how she overcomes this presumption in her hearing.
2. Ditching claims in improper summary dispositions: Stuart Taylor's backstory of how Judge Sotomayor tried, and almost succeeded, in sweeping Ricci under the rug is pretty remarkable. But what's even more remarkable is that Ricci is not the only instance of her trying to get rid of claims that she finds difficult, thorny, or personally does not like by short per curiams or unpublished summary orders (in apparent defiance of Second Circuit rules, not to mention sound American judicial practice). Does she really think that no jurisprudential purpose would be served by an opinion and a full legal analysis in cases such as Ricci, Didden, and Maloney? It is ironic that one White House-Leahy line that is being spun out in the press today is how "meticulous" and "methodical" she is about plodding through the legal analysis of cases. This is obviously an attempt to blunt questioning about her cursory treatment of serious legal claims that have come before her, in what is tantamount to judicial malpractice. She should answer questions on this score.
Wendy's statements are misleading to say the least:
1. Wendy says that Judge Sotomayor "can't bring herself to give [the white men who decided Brown] credit." But Judge Sotomayor specifically said that it is "significant" that they were white men. She goes on to say that she chooses to emphasize that the lawyers who argued the case—folks like Thurgood Marshall and Constance Baker Motley—were people of color. Can Wendy bring herself to acknowledge that Brown was the product of sustained and brilliant lawyering by members of minority groups?
2. Wendy's account of the Ricci disposition ignores the fact that a unanimous three judge panel decided on the summary disposition. Judge Sotomayor was not the presiding judge on the panel, and it is the presiding judge who plays the leading role in deciding on the nature of the disposition. The three judge panel concluded that the outcome was dictated by current Second Circuit and Supreme Court law, that there was a thorough opinion below, and that summary disposition was therefore appropriate. One can agree or disagree with these conclusions, but they are not unreasonable.
3. Wendy persists in equating "bias" and "partiality" with differences of viewpoint based on different experiences. Does she seriously think that Justice Thomas's strong feelings about affirmative action have nothing to do with his personal experience? That white people don't have personal experiences that affect their judgments about cases? She could learn something in this regard from Justice O'Connor's description of what it was like to have Justice Marshall as a colleague. Here's what Justice O'Connor said:
Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice.
At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.
Does Wendy think that Justice Marshall was "biased"? That Justice O'Connor naively fell prey to his bias?
Wendy persists in equating Judge Sotomayor's position in the New Haven firefighter case with ethnic bias. But an Hispanic scored high enough on the firefighters' exam to qualify for promotion, and the Hispanic firefighters conspicuously failed to join their African American colleagues in challenging the test. So does Wendy think that Judge Sotomayor is biased against Hispanics?
Speaking of a good line of questioning, I was talking this morning (I am running off to the Senate right now for the start of the hearings) with Cathy Ruse at Family Research Council, who has worked up a line of questioning based upon yet another instance of Judge Sotomayor "seeing the facts [she] choose[s] to see" as a judge.
They are based upon Judge Sotomayor's comments from the bench at oral argument during one of the federal Partial-Birth Abortion case appeals on the Second Circuit in New York in 2004.
In the case, National Abortion Federation v. Ashcroft, the National Abortion Federation claimed that partial-birth abortion was the safest abortion method in some cases and therefore the law banning the practice was unconstitutional. The Department of Justice requested the medical records to back up this claim with all identifying information regarding the patients removed. The partial-birth abortionists refused to provide any records with evidence to support their claim. As Cathy says: "This was tantamount to arguing that they should win the case on their word alone."
The District Judge ruled that the abortion providers should produce the medical records. That decision was appealed to the Second Circuit Court of Appeals. Judge Sotomayor sat on the appellate panel. During oral argument, according to the Associated Press (April 22, 2004), she stated: "I just don't understand what the records will prove in this case."
Says Cathy: "What the records would prove is whether or not the partial-birth abortion doctors were telling the truth. It is irresponsible for a judge to insist that one side in a case merely be taken at its word, especially when evidence is readily available to corroborate or impeach its statements. Appellate courts are particularly unsuited to second-guessing the decisions of the trial court regarding evidence of this nature."
Does Judge Sotomayor believe the abortion industry should be excused from having to prove its case in court when it sues to strike down a duly-enacted abortion regulation?
Does Judge Sotomayor believe medical records are relevant and admissible as a general matter but not if they involve abortion?
Does Judge Sotomayor have such great faith in abortion providers that she is willing to accept their verbal claims as fact and impose them as a matter of law?
To continue to Part II of the debate, click here.