The debate over Judge Sonia Sotomayor continues to rage this week. What is remarkable is how much is being said and how little substance can be found in the coverage. One would think that the law of averages alone would guarantee that some substantive points would be hit, if only by accident. It is becoming increasingly clear that, once again, we will not have a substantive and civil review of the qualifications of a Supreme Court nominee. Neither conservatives nor liberals seem to want (or are willing to tolerate) objective discussion of Sotomayor’s qualifications or opinions. For what it is worth, I would like to discard some of the most often heard arguments in the vain hope that we might still achieve some level of reasonable discourse in this debate.
Let me first address some of the conservative attacks since I addressed some of the liberal attacks earlier.
Claim: Sotomayor is a judicial activist.
As I have stated in my review of her cases, I cannot find any evidence to support the view that Sotomayor is an activist. Indeed, I cannot find much evidence to support the assumption by both ends of the spectrum that she is extremely liberal. She is clearly not as liberal as other short-list candidates like Diane Wood of the Seventh Circuit. She votes regularly with her conservative colleagues and does not have a blind voting record in areas like discrimination etc. If you compare her opinions to Justice Sam Alito when he was an appellate judge, she is the very personification of blind justice. Alito rarely voted against the government and was as predictable as a Swiss clock in terms of outcome in cases. Sotomayor, in contrast, has often voted against liberal values and interest groups. Her votes in Tigue v. DOJ and Wood v. FBI were viewed as contrary to principles of open government and more in line with the Bush Administration’s views. She supported the result in Doninger v. Niehoff, which was a highly controversial case and major blow to both the first amendment and student rights. I have now read all of her major opinions and dozens of less important cases. I see absolutely no evidence of bias, as I did with Sam Alito.
Claim: Sotomayor is a bad judge due to her reversals by the Supreme Court.
This claim is particularly bizarre, citing a 60 percent reversal rate. This is an example of how statistical analysis should be left to professionals and not attempted at home. Only five of Sotomayor’s opinions have been reviewed by the Supreme Court — not an unusual number given her 18 years on the bench. However, with such a small pool of cases, even a single decision going either way will have a huge impact on her “batting average.” The reversal rate for all appeals is around 75 percent. I expect that her percentage of losses will go up with the Ricci case which is likely to be overturned in my view. However, that does not mean that she is a poor judge. If you review these cases, both Republican and Democratic appointed judges supported her side. They were not glaring acts of judicial activism, but matters of reasonable disagreement between jurists.
Claim: Sotomayor’s comments in speeches show that she is a racist.
Much has been made of her statement in a speech that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” I strongly disagree with this statement. Some of the greatest and most sympathetic justices in history came from privileged backgrounds and some of the least impressive and least sympathetic justices came from less privileged backgrounds. I doubt that Judge Sotomayor would view Justice Thomas or former Texas Supreme Court justice Alberto Gonzales as examples of diversity in background making for a better jurist. However, it does not make her a racist or radical. There is no question that experience counts. Marshall did play a transformative role on the Court in its consideration of cases in a variety of areas. The problem with her statement is the use of the words “better conclusion.” She can rightfully argue that her experience gives her a deeper understanding and a better perspective. However, she was wrong to suggest that, simply due to her upbringing and ethnic background, she will reach better conclusions. That, however, does not transform her into a racist by any reasonable (or logical) interpretation of that term.
Claim: Her statement about policy making on the Court makes her a danger.
In a speech at Duke, Sotomayor stated: “All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made. And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.” She was right, she should not have said it. Once again, this was an unwise and ill-considered statement. However, Justice Scalia and others have made such mistakes in speeches. Moreover, this one was understandable. Courts interpret laws that can have sweeping impacts on citizens. They also set principles of interpretation and rules of construction. The use of the word “policy” was a mistake. They do not make policy in the political sense. They do, however, shape judicial doctrines and rules. As I noted in my review of her cases, here, she has revealed no such activism in cases over an eighteen year period.
Claim: The Lack of Intellectual Depth in Sotomayor’s Opinions Shows That She is Not Intellectual Enough for the Supreme Court.
Like a number of other professors and commentators, I have expressed disappointment in the fact that Sotomayor’s opinions lack of deeper view of the law or any particularly profound observations on the law. Conservatives, however, take this lack of depth in these opinions as evidence that Sotomayor is not smart or competent. This is demonstrably absurd. These opinions are little different from those of Alito, Souter, or the limited writings of Thomas. Clearly, Sotomayor is quite intelligent. This record is little different from records of Republican nominees who enthralled these same critics.
Ultimately the greatest difficulty for Republicans is to insist on a searching confirmation hearing with specific answers from Sotomayor after their treatment of Roberts and Alito. Those confirmation hearings were laughable photo ops for Senators (including Democrats) who thrilled in the chance to talk about baseball and movies.
Claim: Sotomayor cannot be blamed for decisions where she is not the author.
Many liberals and civil libertarians have criticized Sotomayor for her participation in panel or en banc decisions that are viewed as inimical or hostile to free speech, open government and other principles. The response from supporters has been that, if Sotomayor was not the author, she cannot be blamed for the opinion. I believe Judge Sotomayor would be the first to correct his misunderstanding of judicial rulings. Any judge has the ability to file a concurrence or a dissenting opinion when she has disagreements with the majority opinion. Judge Sotomayer did precisely that in the Gant v. Wallingford Board of Education case. Likewise, other judges filed concurring and dissenting opinions in the controversial decision in Ricci v. DeStefano. When Sotomayor voted with the majority in Doninger v. Niehoff, she bears the full blame for both the result and the language in that opinion. Every judge must sign off on a majority opinion and has a professional and ethical responsibility to agree with the opinion before affixing their signature.
Claim: The Lack of Depth or Broad Legal Analysis of Sotomayor’s Opinions Only Shows That She Is a Good Judge Who Decides Cases on the Merits.
There is an effort by liberals to turn lemons into lemonade with regard to Sotomayor’s opinions, which are pretty unremarkable. The New York Times and various neutral commentators have described these opinions as narrow, limited and generally lacking any deeper historical or theoretical treatment. Sotomayor’s most vocal supporters have yet to cite a single opinion in 18 years that is in any way notable in its insightful treatment of the law. That should be a concern. Most judges (including judges on the shortlist) have opinions that show a vision for the law, a broader view of where a given case fits within a broader area of jurisprudence. These cases are the reason that they have been routinely cited as possible justices. Many of Sotomayor’s colleagues like Guido Calabresi are praised for such brilliant analysis. This highlights the difference between a judge and a justice. A justice must attempt not only to resolve a case but to maintain a coherent and consistent approach in a given area. We have had too many justices who lack such a vision and produce endlessly conflicting and insular decisions. Cases become little more than a muscle vote on outcome. An interesting comparison can be drawn with the relatively brief treatment given second amendment jurisprudence by Sotomayor’s panel in two prior cases (reviewed in the earlier blog entry) and the Second Circuit’s recent more fulsome ruling in National Rifle Association v. Chicago, here. In that case, Judges Frank Easterbrook and Richard Posner reach the same conclusion as Sotomayor but offer a far better understanding of their view of the underlying law and principles. These liberal and conservative jurists — Calabresi, Easterbrook, and Posner — have many such opinions with such substantive analysis. They have all rightfully been cited as ideal candidates for the Supreme Court due to their past writings. Clearly, most cases do not warrant such treatment, but occasionally such attention is warranted. These are the opinions that speak to jurisprudence and not just judging. They shape the law and the debate over the evolution of legal principle. The complete absence of such opinions in eighteen years of work by Judge Sotomayor is surprising and disappointing.
Once again, that could reflect a certain deference to her appellate status or a lack of broader vision. It is certainly true, as she stated in a prior interview, that “95 percent of the cases before most judges are fairly mundane.” She used this observation to explain why she does not write grand opinions: “I’m not going to be able to spend much time on lofty ideals.” However, after 18 years, such cases do come along and warrant a fuller treatment with a glimpse at a deeper judicial philosophy. In almost two decades of opinions and writings, we should have some notion of Sotomayor’s deeper intellectual view of the law. We do not. The fact is that these opinions are remarkably unremarkable. It is certainly true that this record is not unlike prior nominees like Sam Alito. I criticized Alito’s appointment on the same ground and (unlike Sotomayor) I opposed him because I believed that opinions were not just limited but also biased. When pressed on Sotomayor’s opinions, supporters either refer back to her inspiring life or try to argue that it is good not to offer a broader vision of the law. Neither response is a sufficient answer to this criticism.
Claim: Questioning Sotomayor’s opinions must be an act of racism or sexism or both.
Just as conservatives should be denounced for calling Sotomayor a racist, liberals should be ashamed for using the same attack on people who question the depth or vigor of her past writings. Criticizing Sotomayor’s opinions as lacking intellectual depth is not the same as saying that she lacks intellectual depth as a person and certainly nothing about her race or gender. Indeed, for those of us who criticized Alito on the very same shortcoming, it would be racist and sexist to treat Sotomayor differently. Over the course of a long judicial and professional career, Sotomayor has never exhibited particularly profound views of the law in opinions or law review articles. Other candidates like Diane Wood and Harold Koh have demonstrated such views.
What is striking about these attacks on racism and sexism is how little liberals appear to tolerate even moderate criticism of an Obama nominee. This is precisely the blind rage and rhetoric that liberals denounced among Republicans for the last eight years with regard to Bush nominees and policies. Indeed, most liberals know very little about Sotomayor’s judicial history or ideology despite the fact that she will hold one of nine critical positions on the Court. In reality, Sotomayor is demonstrably less liberal than someone like Wood and has opposed core liberal values in past decisions. She often appears more “empathetic” toward authority figures from police officers accused of abuse to school officials cracking down on student speech. The vicious attacks reflect the low-grade discourse that we have on such issues today in our red state/blue state mindset. Obama had the ability to appoint anyone and he nominated someone with an unknown legal philosophy and mixed voting record. We should be able to discuss the lack of depth in these opinions objectively without calls of racism or sexism. Otherwise, these confirmations become personality driven events with little substance or scrutiny.
Claim: Sotomayor will clearly be a great justice.
I am currently working on a cover magazine piece that will identify the greatest justices and try to suggest some objective criteria for such a ranking (though I will also acknowledge considerable subjectivity in this exercise). Sotomayor supporters have insisted that she is clearly someone who will be one of the “greats.” This characterization depends on what you are seeking in a nominee and what you mean by a great justice. In my Supreme Court class, we often discuss such rankings. For example, supporters have understandably invoked Justice Thurgood Marshall repeatedly in describing Sotomayor. As I have stated on the air, Marshall was indeed a great justice (and happens to be one of my personal heros who I discuss every year in welcoming the class of new law students to George Washington). Marshall was a brilliant lawyer and a brilliant choice for the Court. He offered his colleagues wonderful insights into a number of areas and supported the protection and expansion of core liberties while on the Court. I believe that Sotomayor will bring such a perspective to the Court and challenge existing ideas of her colleagues.
Before this nomination, many of us argued for the appointment of someone who would deepen the Court’s theoretical or intellectual debate — something that is increasingly absent in decisions of the Court. Frankly, Marshall was not viewed as being one of the most influential justices in the shaping of legal theory or fundamental views of the law. Marshall himself never claimed or suggested such a position on the Court. He was great in other respects. When justices are ranked by academics in terms of their contributions to the intellectual or theoretical development of the law, Marshall is rarely mentioned. Once again, it depends on what you want out of a nominee. The Republicans have been skilled in selecting judges and justices who would offer a strong theoretical foundation to shape doctrine and theory for generations. Scalia is unpopular with liberals but he has had such a long-term impact on the law. Being a justice is not simply the act of voting. A great justice on the issue of legal theory is someone who can shape not just the ruling in one case but such cases for a generation. Sotomayor could still prove to be such a jurist, but she has not demonstrated such a long-term or deeper view as a judge.
Claim: Sotomayor’s academic background proves that she will be an intellectual force on the Court.
I have taught a course on the Supreme Court and covered that Court as a columnist and commentator for roughly two decades. I have never seen an undergraduate or law school record relied upon so heavily to defend an appointment. The last time I checked placement in a Princeton class said a lot about your chances for acceptance in a graduate school but not the U.S. Supreme Court. Sotomayor was a brilliant student and is clearly an impressive person. However, being bright is not the measure of a great justice. All of these candidates are bright. Many have had inspiring personal stories. We often encounter the same issue in the appointment of faculty. Students who graduate at the top of their classes and serve prestigious clerkships are not necessarily gifted or insightful in their view of jurisprudence or the law. We look for people who can help shape their fields of the law and demonstrate a broader vision. The same standard should apply to Supreme Court justices. Sotomayor is by any estimation an unknown in how she views the law and whether she will contribute in a deeper way to the concepts and theories that shape the law. The best indicator of such views are found in opinions and articles, which are unavailing in Sotomayor’s case.
Ironically, I am most drawn to her not because of her inspiring life or her performance as a student. As a litigator, I am delighted with her experience as a litigator and trial judge. In that sense, she brings a certain professional reality to the Court the way that Fortas, Marshall, and a few other justices did. While she is not my top choice, she is the nominee and I believe Obama has selected someone who meets any reasonable standard for confirmation.
Claim: Anonymous sources should not be considered in reviewing Sotomayor’s background as a judge.
I have long been a critic of personal attacks based on anonymous sources. (I have been on the receiving side of such sources in the past). However, there have been loud criticisms of reporters who have quoted former clerks saying the Sotomayor was often lacking in knowledge or details of cases. The same criticism have been levied against lawyers who have objected that she is allegedly a “bully” and abusive from the bench. There are times when anonymity is an understandable prerequisite for sources. While I do not like personal or salacious or clearly malicious stories based on such sources, few lawyers (particularly recent clerks) would feel comfortable offering criticisms of a sitting judge (or future justice) without such protection. Law firms and other judges would not look kindly on such criticism and these lawyers may argue cases before Sotomayor on the Second Circuit (or on the Supreme Court). I have previously said that I do not place as much importance on temperament as some others. I am more concerned with finding jurists with a deep vision of the law. However, the annual reviews of judges by the bar are anonymous because it is understood that anonymity is the prerequisite for such professional reviews from attorneys.