Thursday, October 08, 2009
Sotomayor’s Civic Disservice
“No More Kabuki Confirmations,” blares the cover of the new ABA Journal, carrying a picture of then-Judge Sonia Sotomayor taking the oath before the Senate Judiciary Committee. The article is good reading, and it does a fine job of articulating the frustrations of the modern-day confirmation process. But the article paints the confirmation process as being harmful only insofar as it wastes time. And Sotomayor’s evasive answers are presented as regrettable, but, under the circumstances, understandable. I think that assessment is too rosy.
Posted by Eric E. Johnson on October 8, 2009 at 12:24 PM | Permalink
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Well, sure, it would be better if everyone were honest.
But (1) you vastly overestimate how closely non-lawyers paid attention to the hearings; (2) there are important benefits in citizens thinking that that law is neutral and easy to apply (which it often is); and (3) I imagine that the very small number of non lawyers who heard the statement and were taught by it actually didn't believe it.
Posted by: dave hoffman | Oct 8, 2009 1:37:27 PM
I agree that Sotomayor chose to accept the cognitive frames created by her opponents when answering their questions about the role of a judge and that she crafted her answers to fit neatly and inoffensively within those frames even though those frames do not, in my view and apparently yours as well, accurately describe the role of a judge. However, I live in conservative northwest Florida and have fought the battle with friends and acquaintances that you suggest she should have fought at her confirmations hearings. I have had, as I think she would have had, little success-once a cognitive frame is embedded in a person's mind they are (some would say biologically) immune to evidence which tends to contradict their already established cognitive frames. In other words, placing the burden on her to reframe the debate at a such a delicate time and with such limited exposure both in the number of viewers as well as the amount of time she was given to defend that position, is unfair.
There is little doubt she would not have succeeded in reframing the debate. I also doubt that attempting to do so would risk only a "small flap" but, rather, would have potentially harmed both her tenure as a justice as well as the Supreme Court itself. The cognitive frames in those round these parts are the result of a decades long effort to limit the ability of judges and justices to perform their role as we see appropriate by creating false frames in the minds of many Americans. The onus to undo those efforts should no be placed on Sotomayor or any potential justice at a confirmation hearing especially in this partisan, sound-bite environment. Someone or something should attempt to reframe that debate but don't put the burden on one going through the confirmation process.
Posted by: jim green | Oct 8, 2009 2:19:01 PM
Sotomayor repeated ... “The task of a judge is not to make law. It is to apply the law.”
The problem with that statement is that, at best, it is an eighth-grade understanding of the American court system. If one of my law students wrote that on a final exam, I would probably beat my head into my desk.
Francis Bacon: "Judges ought to remember that their office is jus dicere and not jus dare: to interpret law, and not to make law or give law."
Posted by: The Quiet Lawyer | Oct 9, 2009 2:54:15 AM
Uh, Quiet Lawyer? Just a reminder: Bacon was James I's notoriously corrupt attorney general and chancellor and a powerful exponent of the principle that kings should have absolute discretion to interfere with the proceedings of courts in particular cases (most notoriously in the Case of Commendams (1616). That quote that you offer goes hand in hand with Bacon's view that (a) the king ought to be able to override the judges' application of law in particular cases and that (b) the law was whatever the king said it was. Call such a doctrine "super-Chevron deference," if you like. This view was similar to that of Hobbes, who presents Bacon's view in opposition to Edward Coke's opposing view in his "Dialogue between a Philosopher and a Student of the Common Law" (1681). Bacon/Hobbes disliked the idea of judicial creativity in reasoning about the common law, because such interpretative discretion deprived the king of discretion to ignore custom, precedent, separation of powers, etc, in favor of the king's own policies.
So when Sir Francis starts spouting off about the duties of judges, just remember that his theory comes with a rather expansive view of the powers of kings (or Presidents). If you like separation of powers -- Bacon/Hobbes most certainly did not -- then you'll not be so quick to quote Bacon.
Posted by: Rick Hills | Oct 9, 2009 10:07:59 AM
You know, It's a favorite refrain of (primarily) liberal legal academics and lawyers that Judges actually play a substantial role in making law, and to deny it is to be either simpleminded or misleading. They talk about how Federal Judges have a substantial lawmaking aspect to their position, and how this is laudable and should be encouraged.
The difficulty is simply that while many look to the "heroic" liberals of the Courts from 1948 or so to 1980 or so as paradigmatic as the proper role of court as making law, and have developed all sorts of convoluted rationales for how it is proper, this has never been viewed as the proper role of courts by the people even if they may agree with the decisions. The reason for the kabuki show is that the democratic deficit of having the courts making laws is obvious to the average man on the street, and the representatives either share their views or don't wish to cross them. The real question is why we have a kabuki show in which nominees swear fealty to democratic principles and do what they like once confirmed.
Posted by: Z | Oct 9, 2009 10:35:59 AM