« One Small Victory | Main | Initial Thoughts on the Prop. 8 Decision: Back to Where We Started? »

Tuesday, May 26, 2009

How Should We Play the [Sotomayor] Game?

So, the announcement has been made, and the press releases -- pro and con -- that have been sitting ready for days and weeks now are shooting their way back and forth like a screen-capture from Joshua in Wargames.  Not to mention the oncoming barrage of blog posts, which, although perhaps not drafted in advance, in many cases will prove no more fresh or surprising than if they had been.  I have written before that the Supreme Court confirmation process has become, in effect, a game.  Not in the sense that it's meaningless or trivial; of course it will have real-world effects, although those effects will be far less great than some of the ensuing arguments will make it seem.  Rather, it's a game in the sense that it follows an evolving but reasonably stable set of standard rules and moves, in which everyone knows and plays their part.  That many people will be passionate about this -- that they will be convinced that they are not simply playing a part, that this nomination and this nominee matter more than most -- does not refute this point; football players and their fans go through the motion about a dozen times a year, and to tell them each game is the same old game, that each is more or less predictable as a game, if not in outcome, and that there's no point getting worked up about it would be a pointless conversation.  And, as I've also written, like other games, the Supreme Court confirmation game is also about goods that precede and in some ways can be more important than the actual identity of the nominee (hence the brackets around Sotomayor's name in the title of this post), because it serves other purposes: fundraising, ideological wagon-circling, political advantage, and, tying these all together, the simple perpetuation of activities -- and jobs! -- that depend on a continuing supply of those goods.  So, of the Sotomayor nomination, I say with weary resignation, let the games begin.

Of course, the academic stance I'm giving above, although I think it's true to life, is also part of the game.  So let me play my part, too, with a few instant observations.  First, I've relied heavily in writing about these issues recently on the statements of Wendy Long, of the conservative Judicial Confirmation Network.  I'm not singling her out because of some animus.  Rather, two things make her a great example: she plays her part so well and so transparently, and her income and raison d'etre so clearly depend on her playing it, regardless of who is chosen.  We could, I think, say the same thing about National Review's Bench Memos blog (and no doubt many liberal blogs), and today the two converge.  Long writes on the blog:

Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written.  She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.


Not to put too fine a point on it, but this is bullshit.  Not in the sense that it is untrue!  Some of these criticisms may be well-founded, or not.  Most of them are relatively meaningless or unproductive, in the sense that they barely make factual claims at all, but just state -- really, restate -- vague and contestable value judgments.  Those judgments may be fair or unfair; mostly, they depend on your agreement with antecedent premises, such that any useful discussion of Long's statement really has to be an argument about those premises, not about Sotomayor.  

And that's the final point: most of these statements are suitably airy that they could be voiced about just about anyone Obama was likely to nominate.  I am sure that the phrase "liberal judicial activist of the first order" would have appeared in a statement from Long no matter who the nominee was.  Similarly, I could draft a critical statement of similar length and accuracy right now that would describe just about any nominee the next Republican President is likely to put forward, without even bothering to ponder a shortlist of potential nominees.  

That's the sense in which Long's statement is bullshit.  In a (Harry) Frankfurterian sense, it does not matter whether Long's statement is especially true or false about Sotomayor -- to Long, whether she knows it or not, or to anyone else.  It may be that this is inevitable; it may be that it is largely impossible to have a particularized and productive discussion about anyone who is likely to make it through the Supreme Court vetting process, short of the kinds of personal accusations that characterized (and in many respects marred) the Thomas nomination.  But this is the very definition of buillshit I am using here.  We are engaged in a conversation in which, in some ways, both sides of the dialogue are not so much telling the truth or lying, but speaking in a way that is relatively indifferent to whether what they say is true or false.  We are having a conversation that purports to be about an individual -- Sotomayor -- and that plugs in suitable pieces of her biography or her public statements or her decisions from time to time, but which is largely indifferent about whether we are speaking accurately about that individual, because we are really talking about something else -- whether to support liberal nominees or conservative nominees, regardless of how much or little it actually matters, or whether the Democrats should win or lose, or what we think about abortion, or who is to have the political and fund-raising advantage, and where Wendy Long (or Ralph Neas, or some FedSoc or ACS official) is to have his or her next expensed meal (or which law professor is going to speak to which network!).  The Sotomayor game is not an unimportant game, although its implications can be exaggerated.  It does have real-world effects, as I wrote.  And, of course, it is not unimportant, financially, ideologically, or otherwise, to those who will find themselves playing it.  But it is a game, and it is substantially a bullshit game.


In that sense, let me make two recommendations.  They may seem somewhat contrary to my suggestion that we are having a conversation that pretends to be concerned with the particulars of Sotomayor herself but really isn't, but I think they are actually in service of this point.  The first is that it is somewhat pointless, barring exceptional circumstances, to care too much about the particulars of Sotomayor's record.  My point is not that her background or record are irrelevant, but that both parties have learned to nominate individuals who meet any plausible set of expectations that we might hold of a Supreme Court Justice: the nominee will be reasonably smart, experienced, talented, and so on.  Indeed, that is why we pretend to care so much about particulars, about individual decisions or statements or even gaffes -- and why, when those talking points fail, we dig for other behavior (sexual harassment, corporate conflicts, drug use, etc.) that might serve as disqualifiers.  Both parties at this point can be relied on not to nominate idiots or monsters; that leaves us arguing over what each side will argue are telling details, but which rarely are.  Whether or not Sotomayor said that a wise Hispanic woman will reach better decisions than an old white guy, I doubt her overall record will actually suggest someone who departs from pretty standard notions of impartiality and the rule of law.  Whether she was right or wrong on the New Haven case, her opinion will turn out to have been voiced in, or capable of being voiced in, the kind of standard professional rhetoric that judges and their clerks can employ to make a wide range of views "reasonable" in a professional sense.  As for Long's accusation that Sotomayor believes that judges "should dictate policy," what Sotomayor really said was that judges inevitably make policy, and everyone who is not a talk-show host already understands this, from Scalia on down.  (From the second and third pages of Cardozo's Nature of the Judicial Process: "I take judge-made law as one of the existing realities of life. . . . Not a judge on the bench but has had a hand in the making.")  So, absent some extraordinary evidence that is highly unlikely to arise, let us not waste time turning trivialities and incidentals into talking points and issues for debating societies.  Let us not pretend that some particular statement or decision gives away the truth about the nominee.  If we want to discuss liberalism versus conservatism, let's do that; but let's do away with the pretense that we're really talking about the particular nominee, or that some sound bite should make the difference between confirmation and rejection.

Conversely, and with all due respect to my guest co-blogger Rob, a former Sotomayor clerk, let us please dispense with the argument that Sotomayor should be confirmed because she is the best nominee in the best of all possible worlds.  She may be -- I doubt she is, but I'm largely (and I think soundly) indifferent on this point -- and she may not be, but that is a silly standard.  Rob rather famously wrote here that Sotomayor is "an absolutely brilliant jurist and an absolutely brilliant person" (emphasis in original!).  He added that he made this judgment on the basis of having:

worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan’s graduate school, which was widely considered the best department in ethics in the world when I was there.)  Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter. 

I can't, of course, say that this is untrue, not having met Sotomayor or, I dare say, most of the smartest people in the world.  I would note that that the comma between "world" and "in both" in Rob's sentence above should be omitted if his statement is to be genuinely accurate.  I highly doubt that the very best minds of the world can be found in either law or philosophy; Rob has, at best, worked closely only with some of the very best minds in the world in law and in philosophy, and that's not at all the same thing as working with some of the very best minds in the world tout court.  I doubt even the more qualified version of Rob's statement.  I don't doubt that some of the best minds in law and in philosophy could have been found at Yale and Michigan, but both faculties obviously also contain some lesser minds, and for many reasons, geographical and so on, many of the genuinely very best minds are likely to be found dispersed among many other institutions or, in the case of law, in private practice.  (Not to mention the likelihood that many of the very best minds in either subject are not English speakers or Anglo-American lawyers.)  Even assuming that the qualified version of Rob's statement is true, I do not assume that working closely with these individuals is a good way to evaluate how brilliant they are.  Surely all former proteges and law clerks realize just how much their relationship to their mentor or judge, the particular nature of that relationship, the filio-piety of the academic and legal worlds, and their own experience can distort an objective evaluation of the people with whom they have worked closely.  The last person I would go to for an objective evaluation of, say, Harry Blackmun, is a former Blackmun clerk.  So maybe Sotomayor is as brilliant as Rob says -- maybe there are none more brilliant -- but I doubt it.


In any event, that standard is neither necessary nor sufficient.  First, it is hardly necessary for a Supreme Court Justice to be the smartest person in the world.  However difficult the job is, it is not that difficult.  Second and more importantly, lawyers and other workers in the intellectual industries can seriously overstate the importance of brilliance.  Many other qualities can be as or more important to the job, such as humility, perspective, a reasonable degree of self-doubt, practical wisdom, good judgment, and so on.  Lacking these qualities, a supremely brilliant nominee would not necessarily be a good choice.  I see no reason to think Sotomayor lacks a reasonable degree of these virtues -- again, I think the vetting process and the degree of experience one must accumulate before being considered for the job largely takes care of this for virtually any imaginable nominee of either party.  But my point is that Sotomayor neither especially needs to be the world's most brilliant person, nor would she necessarily be suited for the job if she were.  I think we can see some evidence of that in the rest of Rob's post, in which he conflates brilliance in the sense of intelligence with brilliance in a variety of other qualities, such as getting the most out of her employees.  

There is a further problem here.  Setting up Sotomayor as the very best, or (what is not the same) the very smartest, possible nominee again leads us to focus on batting back and forth over what amount to trivialities, in which we either argue that Sotomayor cannot be the world's best nominee because she once said something stupid, or in which we go to heroic lengths to justify every statement Sotomayor has ever made.  (Remember Bush 41 saying that Thomas was the best possible nominee for the job?  And liberals arguing that this was an absurd statement?  Neither proposition ultimately had much to do with whether or not Thomas should have the job, of course.)

Finally, and again somewhat in contradiction to Rob's post, and for that matter in contradiction to Jeff Rosen's earlier article, let us not waste undue time arguing over whether Sotomayor is loved by her clerks, or by advocates before the Second Circuit, or conversely whether she is brusque or impatient.  I personally find these qualities very important, and am likely to prefer people who do not forget how to treat those around them over those people who take on superior airs or treat others badly, whether or not one person is "better" at some job than the other.  But this is a personal predilection.  In a deeper sense, though, I doubt it matters that much.  The old saying holds that no man is a hero to his valet; for law clerks, it is more true to say that every man is a hero to his valet.  But neither is that important.  Whether Sotomayor's former clerks love or hate her says something about how she does her job, and maybe about what kind of person she is (although, again, law clerks are unreliable sources), but very little about how well she does her job in ways that the rest of us have any reason to be concerned about.  Similarly, oral argument is itself only somewhat important to a judge's job -- and being liked during oral argument is still less important than that.  It is interesting to hear Jeff Rosen and others argue about what lawyers thought of Sotomayor's behavior on the bench, but, really, I see no reason to care much whether they liked her demeanor or hated it.  She could be a perfectly horrible person and a perfectly qualified Supreme Court Justice, and vice versa.  (And what of the relationship between any of this and the "empathy" debate?  It is possible to be empathetic in carrying out one's duties, professionally empathetic as it were, and yet oblivious to the feelings of people immediately in one's path.  That's crummy, in my view, but utterly common.  And, again, vice versa; how many people who preach social justice and fairness for all also yell at their secretaries?)

This has been a very long post indeed, and since I've suggested that most of the debate about Sotomayor will be, in a sense, rehearsed, one might ask whether it's worth talking at such length about all of this.  I think so.  My point ultimately is a little peculiar, perhaps.  It's not that by recognizing all of what I've argued above, we could have a more productive discussion of Sotomayor.  Rather, it's that there is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all -- unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I've already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on.  Those are the issues we are actually debating when we purport to argue about a specific nominee.  Debates over those issues are, of course, generally unproductive, although they are the stuff of our broader political dialogue.  But we can't make it otherwise by arguing about the details of particular nominees.  We can't turn an endless (and, for some, professionally rewarding) debate over essentially contested principles into a useful conversation by pretending that we're actually having a dispute over individual nominees -- especially when, given how well both parties are vetting their nominees, those nominees' bona fides are largely incontestable.  

Again, just because this is largely a game does not mean it is not an important one, or at least one that some people will care very much about playing.  But we could play it a little more honestly, or at least be a little more honest about the fact that we are playing it.  We could have unproductive but honest debates about the fundamental issues that actually concern us, rather than pretend that the things we are actually talking about are all that important.  And if that feels too absurd -- if we acknowledge that it's pretty ridiculous to argue over what Sotomayor said in one line of a speech, and equally ridiculous to argue over how brilliant she is, but we think it's just as ridiculous to have another conversation about Roe v. Wade -- perhaps we could just talk less altogether.  Frankly, I could think of worse things.  I see no special reason to care all that much about giving Wendy Long, or Kate Michelman, or whoever else, a generous income, or to give law professors like me a more prominent forum.
 

   

Posted by Paul Horwitz on May 26, 2009 at 01:08 PM in Paul Horwitz | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef01156fb1b344970c

Listed below are links to weblogs that reference How Should We Play the [Sotomayor] Game?:

Comments

Paul, this is a great post, per usual. Might I just add one thought on the "how should we play this game" idea? Do you think we, as scholars, might try to refrain from casting accusations of bad faith or bullshitting on all the commentators (with the exception, perhaps, of Wendy Long??). Perhaps that's too naive.

In any event, as bad as the initial Rosen piece was on SS, it does seem that in response there is a rush among some commentators (Glenn Greenwald, the beloved Dahlia Lithwick) to tar him as being a water carrier for men's interests above all else. See links below.
I've never met Jeff Rosen, but I have read his work in TNR for a long time, and it strikes me as unreasonable to label him as invariably part of an anti-diversity or anti-woman campaign. Some relatively persuasive evidence can be found at the end of one of his recent pieces, where he wrote that "the next justice should indeed be a she".

Greenwald: http://www.salon.com/opinion/greenwald/2009/05/26/sotomayor/index.html
Lithwick:
http://www.slate.com/blogs/blogs/xxfactor/archive/2009/05/07/the-mediocity-of-diversity.aspx

Rosen:
http://www.tnr.com/politics/story.html?id=6168aeb7-9869-43eb-b401-2204a0d84478

Posted by: Dan Markel | May 26, 2009 1:53:04 PM

Dan -- You are certainly right that it is grossly unfair -- bizarre, even -- to suggest that Jeff Rosen's expressed reservations about Judge Sotomayor were part of an "anti-woman campaign."

Paul -- I cannot help wondering if the most glaring instance of "bullshit" -- or, perhaps, just chutzpah -- so far is the President's call for the Senate to quickly confirm Judge Sotomayor in a "bipartisan fashion." This from the Senator who, because he had decided to run for President, voted against two of the most impressive Supreme Court nominees in recent memory! (Of course, maybe *I* am engaging in "bullshit" simply by saying this! Now I'm confused . . . .)

Posted by: Rick Garnett | May 26, 2009 2:06:03 PM

Dan,

Either you or I misunderstand Paul's use of "bullshit." Naturally, I think it was you. Paul accused no one of bad faith (even Wendy Long), and I didn't read that connotation into his characterization of the "game" as BS. Indeed, as I understand the post, Paul thinks a comment or argument might be both sincere and accurate, but nevertheless still BS.

Posted by: JP | May 26, 2009 2:36:36 PM

Rick,

As I recall, Obama for the most part cited disagreements over judicial philosophy to explain his votes against Roberts and Alito, while expressly recognizing their qualification for the position. As such, I think he avoided BS in exactly the way Paul is recommending here. Of course, if he expects Senate Republicans to do otherwise, it is clearly chutzpah, and if he says he expects Senate Republicans to vote for her because of her qualifications and despite her judicial philosophy it is certainly BS.

Posted by: JP | May 26, 2009 2:48:58 PM

A crucial, crucial point - I think Joshua was the password to the game, not the name of the game (which was "Global Thermonuclear War") or some such.

Posted by: keitht | May 26, 2009 2:53:58 PM

I'd like to take up Dan's question in his Comment regarding what role we as scholars can play in this debate. There is a real educative moment here in which we can try to help move public discussion of the Supreme Court beyond the "umpires v. activists" silliness. Confirmations provide that rare moment when people outside of the academy may actually listen to what we say. Paul's message - perhaps distilled into sound-bitable bits - is worth repeating every time we get one of those media calls: constitutional decision making is not easy; good judges try hard to set aside personal preferences and make well-reasoned, principled decisions; but there are genuine, changing, and professionally respectable differences about constitutional meaning and it is those differences that we are fighting about.

No one, regardless of their ideological or interpretive preferences, can pull constitutional answers out of an objective black box. We would have a much better debate about constitutional law and the role of the Court if we would all stop talking as if such a thing were possible.

Posted by: Lori | May 26, 2009 3:04:28 PM

Keitht--"Joshua" was both the password and one of the computer's names.

/nerd thread-derailment

(I'm a strong believer that the only winning move is not to play the [Sotomayor] game, so that's all I've got on this subject.)

Posted by: Sarah L. | May 26, 2009 4:21:18 PM

Lori -- I understand that smart people (like us!) are supposed to agree that the "umpires v. activists" distinction is silly, and I *do* agree that "activism" is a slippery idea, that "just being an umpire" is easier said than done, etc. But . . . there is *something* to the distinction, isn't there? I mean, it at least points to (even if it does not map onto perfectly, or capture entirely) the distinction between, say, Larry Solum's understanding of the judicial role and virtues and, say, Dworkin's. A federal judge *should* (insert caveats here about how we are all shaped by lots of things, about how no person is an island, about how answers to constitutional questions are usually underdetermined, and so on) aspire to follow the "rules laid down"; she should not attempt to use the judicial power merely to achieve substantive outcomes that she thinks are just. To say this is, I admit, not to say *that* much. But it is to say *something*, and something not silly, it seems to me.

Posted by: Rick Garnett | May 26, 2009 4:39:22 PM

Sarah L. - those pages suggest that WOPR had in some sense began to think of itself as Joshua. And Broderick called WOPR Joshua. Still, I think the "screencap" would be from Global Thermonuclear Warfare. In common usage, a screencap is referred to as beign from whatever application it is capturing, not the CPU itself, sentient or otherwise.

The main thing I notice now is that the general is Maurice from Northern Exposure.

Posted by: keitht | May 26, 2009 4:52:58 PM

On a serious note, I feel the biggest problem with the Umpire argument is that it is very seductive to the non-law professor population. It appeals to notions such "fair play", "callin' em as they see em", and impartiality. I agree that the legal academy should do all it can to demonstrate that the "umpire" vs. "make it up as they go along person" dichotomy is a bogus one but I fear that the efforts will be largely fruitless.

Posted by: keitht | May 26, 2009 5:11:55 PM

Had I beaten Paul to the post, I would not have described it as a "game" and "bullshit" (although those are perfect terms for it). I was thinking of talking about Kabuki Theatre. I don't have the energy to think about, or rebut, the nonsense arguments that are coming from all over the place.

I agree with Lori that it would be up to us as academics to elevate the debate. The problem is that I don't believe activists (or politicians and their staff) want the level of debate elevated. They like the activist/umpire silliness--it rallies the base, enables grandstanding, and helps fundraising. And any effort by academics to change the discussion is done in by the soundbite nature of mainstream media and the partisan, appeal-to-the-base-with-buzzwords nature of the partisan media.

Posted by: Howard Wasserman | May 26, 2009 5:42:28 PM

A federal judge *should* (insert caveats here about how we are all shaped by lots of things, about how no person is an island, about how answers to constitutional questions are usually underdetermined, and so on) aspire to follow the "rules laid down"; she should not attempt to use the judicial power merely to achieve substantive outcomes that she thinks are just.

That's a lot of caveats, and also a caricature of Dworkin's view, which doesn't authorize judges "merely to achieve substantive outcomes" with no regard to legal sources. This might also be a good place to ask: What, exactly, are judges supposed to do when cases are under-determined? How are they supposed to fulfill the aspiration toward impartiality? Presumably, they can't appeal to principles embodied in the law because that would be ... Dworkinian?

Posted by: Micah Schwartzman | May 27, 2009 12:04:00 AM

JP,
My sense is that someone engaged in bullshit, which, as Paul notes, means in this context speaking with indifference to the truth value of a statement, cannot also be making a sincere statement, or a statement held in good faith. One cannot in my view reasonably say that one who is indifferent to the truth of what one says can also be said to be acting in good faith (unless perhaps it's a white lie on a trivial matter). But in any event, my point was not directed at Paul especially, but about the subject of how we should play this game anyway...

Posted by: Dan Markel | May 27, 2009 8:35:36 AM

On Dan's point about sincerity and the truth of assertions, it's worth going back to read the last line of Frankfurt's essay.

Posted by: Micah Schwartzman | May 27, 2009 8:44:35 AM

Btw, some readers here may wish to see Rosen's reaction to the appointment:
http://blogs.tnr.com/tnr/blogs/the_plank/archive/2009/05/26/the-sotomayor-nomination.aspx

Posted by: Dan Markel | May 27, 2009 2:46:42 PM

Nice post Paul! I do think though it is possible to talk about the specifics of this one nomination without it being bullshit as you define it ("judicial activist", "most brilliant", "best person for the job", and so forth). There is no such thing as "the best person" for a job like this. All of the names floated as contenders were qualified. And there are undoubtedly unnamed others who would also have been qualified. All of the potential nominees have their own strengths and unique stories. There is no reasonable way to compare them and to come up with "the best." At some point you just have to choose. It appears to me Obama chose very well. (My colleague, Bob Spoo, who clerked for her has high praise but perhaps for the reasons you suggest, former clerks are not the most objective source.) As you point out this is a political choice. Indeed as all law professors know, all judicial nominations are political decisions with political consequences. Law is not easily distinguished from politics, as any reasonably sophisticated observer must know. The Court is a political institution. I find I am increasingly impatient with statements by otherwise extremely intelligent people about not wanting a "judicial activist" or wanting to be sure she is someone who will "follow the law," as if these terms referred to something real rather than devices we seem to need in order to avoid confronting the very conversation you suggest we have. I wish we would have that conversation too. But I think a certain amount of indirection is apparently necessary in politics. Politics, like diplomacy (or maybe all efforts at persuasion) seems to often require affirmatively *not* talking about what we are really talking about. That said, I'm not sure that all discussion of her nomination specifically falls into the BS category. Charges were made about her intellectual "heft" (by Rosen on the right and Jonathan Turley on the left). These charges struck me as dishonest. It is difficult to believe they would be made about a white male with Sotomayor's credentials. In that context it is relevant to point to those credentials and refute claims that she is not smart enough. I don't think they grant summa cum laude degrees from Princeton without some performance to back it up. (And, as I understand it, Alito was in her Princeton class and he seems to have been thought to be intelligent enough.) Everyone brings their personal experiences and perspectives to the bench. It was true before the Realists pointed it out and I don't think there is any reason to suppose it is not still true. So I am hoping that all of Obama's nominees are women so that the Court finally mirrors the People it is supposed to represent. His next nominee should be a woman too. I look forward to the day when it is even possible to have a Court with a female majority and no one think it the least bit odd or disturbing.

Posted by: tamara piety | May 27, 2009 2:51:30 PM

I agree with Rick Garnett's suggestion that the academic dismissal of the reference to "umpires" and "activists" may be too clever by half. It has never struck me as overly sophisticated (we learn it in our first year of law school) and it seems most effective as a corrective to an oversimplified view of the judge as nothing but a mechanic following clear rules.

Of course terms like "activist" and "umpire" leave much unsaid. But it seems to me that - too often - the academic reaction to them threatens to resemble that of the child who learns that his parents are not infallible and concludes that they must be clueless. Although I understand that no one would admit as much, the impression given is that, because cases are hard, traditional constraints on judicial decisionmaking are mostly meaningless.

Although it is still not perfect, I prefer the story of the three umpires. The first claims to call them as they are. The second tries to call them as he sees them. The third says that they are nothing until he calls them. In concluding that the first umpire doesn't get the complexity of his task, we conclude that the second umpire must have it right. There is no strike zone or, if we accept that there is, there is nothing virtuous about adopting approaches to umpiring that will try to tie us to some definition of it grounded in some authoriatative source other than our own notions about what a strike should be.

This is, I think, wrong as a matter of policy and wrong as a matter of explaining the legal world to our students. Judges - even I suspect Judge Sotomayor - do believe that they are engaged in a process that is at least something like umpiring. While they could be deluded or indulging in a silly fantasy, I rather suspect they are not.

Posted by: Rick Esenberg | May 27, 2009 9:28:30 PM

Rick:

I appreciate the effort to find some foundational usefulness in the distinction of judging styles caricatured in the “umpires v. activist” dichotomy, but ultimately I don’t think it works.

To make the argument: I think there are two basic models of judging that could lead to a viable distinction. Under the first model, a justice could choose to only exercise his or her power of judicial review when a constitutional rule is ascertainable and clear. This approach would demand deference in the face of legal uncertainty. This type of judging, I think it is fair to say, rarely occurs at the SCT level and is not what advocates on either side of the debate view as the ideal. [Consider the conservative reaction to Kelo, and now to the Sotomayor opinion in Ricci. Each of these decisions are decried as “activist” because the justices choose to defer to elected officials in areas of deeply unclear legal rules. Sotomayor’s opinion in Ricci has even been described as ‘reading racial quotas into the constitution”. How a judge does this by denying a constitutional claim is beyond me.]

The second approach – which is probably the model you were working toward – would acknowledge that justices can properly act even in the face of legal uncertainty, but would also claim that “umpires” in such cases are guided by constitutional principles while “activists” are guided by their own value judgments. I confess this seems to me to be an unworkable distinction. For example, in the face of under-determined precedent and historical evidence, is a decision that the 14th Amendment requires “colorblindness” the assertion of a constitutional principle or the imposition of a value judgment? Remember, we are assuming text, precedent and history do not resolve the issue. At this point, I strongly suspect that the internal thinking process of the “umpire” and the “activist” are more or less the same – they are deciding the case in the way they think is most consistent with their reading of the broad promises and principles embodied in the Constitution. The justices’ will have genuine disagreements about what those promises and principles are, but that only brings us back to Paul’s original point: those differences are precisely what we’re fighting about. To say that the judge you disagree with is imposing a “personal preference” while the one you agree with is applying a “constitutional principle” seems to substitute epithet for argument.

Posted by: Lori | May 28, 2009 10:16:20 AM

Lori

I agree that the "activist" label is overused. I am not sure, for example, that I would say the problem with Ricci is that it is an "activist" decision. But I don't accept the notion that the concept is meaningless.

The argument is not simply what to do when a case is "underdetermined" but how we go about deciding whether it is underdetermined. (In fact, I think that the use of the term "under-determined" as opposed to say, "indeterminate" suggests precisely such a debate.) Some approaches maximize judicial discretion and the opportunity to import one's own sense of good policy into judicial decisionmaking.

Of course, its a matter of degree. No one really believes that she can do anything she wants (at least not since William O. Douglas). No one really believes that they are simply reading an instruction manual. But that doesn't mean there aren't differences worth discussing.

Posted by: Rick Esenberg | May 29, 2009 10:06:35 AM

Rick:

I think there are differences in approaches to judicial decision-making, but I am skeptical that those differences are well captured by the umpires v. activists distinction. Nor am I convinced one of these differences is whether judicial discretion is maximized or minimized.

Consider all the subjective choices originalists must make before reaching a decision. For example, an originalist must ask at what level of generality the issue should be addressed. Are we looking for highly specific original expected applications, as Scalia did in Romer and Michael H? Or is it the more general principle that governs - the approach apparently taken by the more conservative justices in commercial speech and affirmative action cases? There also is the question of if/when precedent should trump even clear original public meanings. It has been a while, for example, since an originalist has argued that the Equal Protection clause should not apply to women, but what objective rule of interpretation is being followed in reaching that conclusion? There also, of course, are all the choices justices using history must make in deciding how to weigh complex and often competing historical information.

Even good-faith originalists must constantly make choices in applying their preferred interpretive approach. Each of these choices introduces the opportunity for a justice to exercise discretion, and to do so in a way that is perhaps even less transparent than other approaches. That is a distinction, but I am not sure it is one that cuts in favor of the umpires.

Posted by: Lori Ringhand | May 29, 2009 11:48:34 AM

I've never been to PMOG, but this game really does look fun. You guys should really be working on some retro games, old offline classics maybe, such as domino :) I always loved this game.

Posted by: domino online | Oct 7, 2009 11:40:31 AM

Post a comment