Sessions on Sotomayor

Jeff Sessions is one of my home-state senators.  Never having met him, I have no reason to think he's a foolish man.  But in my view, his opening statement at yesterday's Sotomayor hearings says some foolish things.

The one that strikes me the most is this statement:

Indeed, our legal system is based on a firm belief in an ordered universe and objective truth. The trial is the process by which the impartial and wise judge guides us to the truth. 

Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda. I reject this view. 

This is a standard "postmodernists are ruining our country"-type statement (later he talks about the dangers of a "relativistic world"), common in conservative electoral politics and bad popular writing, although postmodernists can't even ruin their own English departments anymore.  The problem with it is no one, I think, really believes it.  Certainly it is not a thoughtful conservative position as such.  It is just incoherent.  Of course many people -- even many relativists! -- believe that there is or may be such a thing as objective truth.  But they also believe that that truth is hard to come by, and that individual efforts to grasp it are necessarily colored by experience and perspective.  Far from being the case that the trial is "the process by which the impartial and wise judge" -- and in a universe in which objective truth is easily arrived at, what need is there for wisdom? -- "guides us to the truth," the trial is actually a device by which jurors, mostly, strain to arrive at the best available understanding of matters of fact given the widely divergent evidence and testimony placed before them.  As a method of arriving at the objective truth, the trial process is, at best, a second-best method; what it does is arrive at a fair process for rendering a verdict given the difficulty of knowing the truth.  Certainly a belief that truth is perspectival and difficult to find does not mean that judges are free to push their own agendas, and I don't believe Sotomayor has said otherwise.

Sessions also says: 

We have seen federal judges force their own political and social agenda on the nation, dictating that the words “under God” be removed from the Pledge of Allegiance[2] and barring students from even silent prayer in schools.[3] 

Judges have dismissed the people’s right to their property, saying the government can take a person’s home for the purpose of developing a private shopping center.[4] 

Judges have—contrary to the longstanding rules of war—created a right for terrorists, captured on a foreign battlefield, to sue the United States government in our own courts.[5] 

None of these examples really demonstrate the dangers of an agenda-driven judiciary, let alone one that is mired in relativism.  These rulings may be wrong, but that does not make them either agenda-driven or relativistic.  The first two paragraphs, at least, again may be wrong, but are anchored in both the constitutional text and, especially for the Pledge case, precedent, applied loyally if without much predictive sensibility (and I would think Sessions would not want lower court judges to "predict" the law).

Finally, can it really be said that Justice Ginsburg is "now considered to be one of the most activist judges in history?"  Really?  By whom?  Certainly not by most of her intelligent conservative critics.  Indeed, I don't think I've ever seen anyone serious make this charge.  Justice Douglas must be turning over and over in a jealous rage in his grave.

Sessions also raises some criticisms of Sotomayor that, although I disagree with him, he is perfectly entitled to make.  Indeed, my view is that he is perfectly entitled to vote against her based on his disagreement with particular rulings and her judicial philosophy.  But it would be nice -- certainly more candid -- if he did so frankly and in a manner that does not rely on obviously faulty premises.