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Thursday, October 08, 2009

Sotomayor’s Civic Disservice

Aba_kabuki_cover“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. 

Sotomayor’s testimony, amplified by tremendous media coverage, strongly abetted the dumbing down of American public discourse about the judiciary. 

Sotomayor repeated the same refrain over and over – so much so as to cement it into the public consciousness: “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.

Judges have enormous power in shaping the law. I won’t belabor the point – it is manifest. And Sotomayor knows it. More to the point, lawyers and legal scholars all know that she knows. But millions of Americans across the country who were watching the hearings might not. 

The legal community appreciates all too well the dance performed in the hearings. No lawyers saw Sotomayor’s testimony and concluded from it that she is ignorant. They concluded, no doubt, that she was trying deftly to manuver the confirmation process. As she was. But we should not pretend that no damage is done when a judge, especially one widely praised for her intelligence, talks as if the work of the Supreme Court, done properly, is clear-cut and perfunctory. 

“Judges,” Sotomayor said, “don’t determine the law. Congress makes the laws.”

Why shouldn’t non-lawyers take that statement at face value? I am sure many people hearing Sotomayor’s testimony assumed what she was saying was accurate. Yet it is not. 

It is no defense to say that Sotomayor was simplifying things. Sotomayor’s statements were oversimplified to the point of being wrong. More importantly, the Sotomayor hearings focused the country’s attention on jurisprudence and the role of judges. It was a chance for the American public to do some considered reflection on the courts and our legal system. Sotomayor should have felt some burden to speak in a way that would illuminate the issues rather than obfuscate them. 

It’s not hard to understand why Sotomayor did what she did – she wanted to be confirmed. But with the current Democratic supermajority in the Senate, it would have taken a spectacular meltdown in front of the Judiciary Committee for Sotomayor to put her appointment in jeopardy. She should have risked a small flap by speaking about the law in a more sophisticated and complete way. Compared to other nominees in recent history, Sotomayor spoke from a rare position of political safety. She could have afforded to be more forthright in her responses. 

My real fear is that Justice Sotomayor may have done something worse than merely pass up an opportunity to help Americans understand something more about our legal system. I am afraid that Sotomayor may have lessened the opportunity for others to do so in the future. By bowing to a soundbite-level understanding of the law, Sotomayor may have helped to entrench it. And that is a real civic disservice.

Posted by Eric E. Johnson on October 8, 2009 at 12:24 PM | Permalink


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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

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

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

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

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

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