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.
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.
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.
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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".
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
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
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.
(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
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:
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
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
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
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.
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