The Passion Play of Sonia Sotomayor

Like most like most political processes on television these days, the Senate confirmation is a grandstanding joke, where both the Senators and the nominee, Sonia Sotomayor, act dignified and grandiose, while superficially touching on important issues. It is a performance, a play, a passion play, if you will, where the opposition tries to nail the nominee to a cross and the majority tries to resurrect her.

I don't blame Judge Sotomayor or any nominee for that at all. She's a guest. The Senators, many of them anyway, are trying to score ideological and political points, and it gets ri-goddam-diculous, as John Wayne would say.

If you weren't interested enough to watch the hearings you don't want to be overly bored about it with me, so I will just give a very general summary and then go onto a few little things I noticed, of which I doubt you will read much about in the mainstream media, although you might in some blogs. These issues sort of jump out at you if you read constitutional law and legal theory.

Summary opinion: Obviously, the judge is a highly accomplished person. Unlike Supreme Court justices in New York (that's the trial level) with whom I've mostly dealt, federal District Court and Court of Appeals judges can't just be political appointees, but do have to know quite a bit. After enough cases, I would expect most know an awful lot of law. Some, of course, are better than others and there are always exceptions. I'm sure on the average though they have forgotten more than most lawyers know, and I mean that literally. Practicing lawyers tend to specialize in a field, and often come to rely on experience as opposed to legal knowledge, but these judges must learn about every subject from admiralty law to patents to international law to personal injury and so on, and deal with thousands of cases over decades sometimes This is why I was so surprised she completely blew some very basic constitutional law (see below).

Sotomayor's background shows she was always a very high achiever, and leaving aside whether you disagree with a small handful of cases she decided on hot button issues, she seems to have accomplished a lot as a student, prosecutor, corporate lawyer and judge. She is famously driven and hard working, as many federal judges are. She has a reputation for being a bully on the bench and Senator Graham of South Carolina probably embarrassed her, although his manner was quite pleasant, by reading a list of descriptions lawyers polled by a federal almanac gave for her. As Graham pointed out, other judges also ask tough questions and make the attorneys stick to ten minute arguments, but she is the only one who is repeatedly talked about like this on her bench. I have read or heard a few attorneys describe her this way too. Lawyers have the same biases, wackiness and differences between them that every other group of people do. But, one thing they tend to agree on, in large part anyway, is who are the nasty or crazy judges. However, the only person I know personally who has been before her thought she was one of the most intelligent judges (although he bases it on one appearance), and Senator Graham pointed out himself that many people say wonderful things about her. In case you think the criticism of her is sexism - first, why do you presume it is male lawyers who feel this way? And second, there are four other female judges on the second circuit bench who are not viewed the way she is.

I think she should be confirmed. I don't see the difference intellectually between her and Alito, for example, other than he appears to be somewhat more ideological than her. While I agree with Barack Obama (when he was a Senator) that there is nothing wrong with voting against confirmation over ideological differences, I probably personally would not do so unless it was something I thought crucial, like if they believed that the courts can't hold laws unconstitutional or that the administration or states weren't bound by Supreme Court decisions among many other possibilities or that separate but equal is a good way too go. Frankly, I have never seen a confirmation hearing (and I've seen it for everyone on the bench now thanks to C-Span) where I would not have voted to confirm.

Which brings us, as almost all things political do eventually, to abortion. The suspicion is, because a liberal president appointed her, that she is pro-choice, and if you put a gun to my head, I would guess she was too. Apparently, no one really knows - I imagine she has been careful about what she says about it since she was first nominated for district court - Only the head partner in a firm she worked at when a practicing lawyer says he is sure she is pro-choice, but she testified, and I thought credibly, that she never discussed abortion of any topic like that with him at any time. I tend to believe her. It does not seem like the type of thing she would be discussing with her boss in a big firm.

Now for the interesting stuff.

A legal realist?

I found one early exchange quite fascinating, because she pretended to know what she was talking about and had not a clue. Senator Graham asked the judge in the first round of questioning whether she considered herself a legal realist. Here's the exchange:

"GRAHAM: And that's what we're trying to figure out. Who are we getting here? You know, who are we getting as a nation? Now, legal realism, are you familiar with that term?

SOTOMAYOR: I am.

GRAHAM: What does it mean for someone who may be watching the hearing?

SOTOMAYOR: To me, it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it's less -- it looks at the law through the...

GRAHAM: Kind of touchy-feely stuff?

SOTOMAYOR: That's not quite words that I would use because there are many academics and judges who have talked about being legal realists, but I don't apply that label to myself at all. As I said, I look at law and precedent and discern its principles and apply it to the situation... "

Here's the problem. The theory of legal realism has NOTHING TO DO WITH JUDGES REACHING DECISIONS BY THE REALISM OF THE SITUATION. She just heard familiar word words - legal and realism - and figured it was easy to guess right. It's possible she thought she knew, but then she is just plain wrong.

Legal realism is actually is a theory of law which, admittedly, is somewhat hard to define as it is a school of thought and there can be differences of opinion, but it's certainly not what she said. It recognizes that judges are human and that in coming to decisions they impart a lot of who they are into their decision, including their experiences and ethics. Now, it is important to note, that being a legal realist doesn't mean that you decide cases a certain way because of your biases whereas a legal positivist does it based on the law. I think that is what the Senator was hoping to show. Both theories allows for judges to try their hardest to be impartial and follow the law. But, either the legal realist is right and both are imparting part of themselves in their decisions or the positivist is right and their decisions are totally divorced from ethics, etc.

If she really knew what it meant, then she gave a ridiculous response and was afraid that being a legal realist would make her seem like she was partial in her judging. That may have been politically wise, because some legal realists also believe that the judiciary is a way to change society and perhaps that is what the Senator was angling at. I think Senator Graham at least understood that aspect, because he also questioned her at that time about what is the best way to change the culture in America. She had no idea what he was talking about but he finally said that he meant the legislature - that is, through the democratic process as opposed to the bench. It is a position that most legislatures give lip service to although many people are very happy with the judiciary shaping policy. She herself has said in the past that they make policy at the Court of the Appeals level, which we know makes conservatives crazy and liberals giddy. It is certainly true and has been for a long time. I do not buy her response that she just meant District Court cases only involve the case in front of them, but Court of Appeal cases make the law for all the courts below them.

Here's the truth. Regardless of what she said - she is a legal realist. I'll get to how I know this in a bit.

The Wise Latina

When I first heard the words from her 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 thought, uh oh, that doesn't sound good.

I couldn't wait until I heard how she tried to get out of that one and I'm not surprised that the conservative Senators jumped all over it. Could she possibly really believe it?

So, I watched the hearings. The left all pooh-poohed it as just a speech and the some on the right acted as if she said, when I'm the judge, the minorities win. Senator Graham, who I thought handled himself quite well in these hearings, politically speaking, pointed out to her, and she agreed, that if he or others like him (that is, white males) had said something comparable, their career would be over.

Her defense, and I had trouble with it, was that if you look at the whole speech, she was saying the opposite - that you don't let your personal biases affect your decision and that her whole career as a judge shows that. More, she sad the way she phrased it was "bad". She was trying to inspire group of young Latina women and thought this was a good way to say it. I didn't buy it. Now, the truth is, the right wing Senators on the committee did not put a dent in her record, in my opinion, in terms of bias. But, how could she mean the opposite of what she plainly said? How can she deny something she said so clearly in multiple speeches.

I thought her defense of this issue so poor that I finally bit the bullet and decided to read the speech, which took all of five seconds to find online, but which I bet, and I mean this, few, if any of the Senators on the committee did at all. Such is the cynicism I have for this process. So, I read it, and . . .

You know what? She wasn't lying and doing a bad job of it. She was telling the truth and just defending it badly. When you read the whole speech, you see that what she was trying to say was - we judges are human. Some of our experiences goes into our decisions. We have to guard against that. In fact, you should be aware of who you are and try to do nothing but follow the law. But, since it is going to happen, all the judges shouldn't be white males. They should be women and people of different ethnic groups, including Latinas, who will understand racial and gender bias cases better than white males.

Do you know what this type of belief system this falls into (except that last part)? Legal realism. Her speech is a perfect example of it even if she doesn't know what it means. And she, theoretically, is a legal realist.

Let me give you two paragraphs from her speech which shows her legal realistic approach, and, while reading it, remember that she does say that judges must aspire to be impartial:

"While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor ... there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, 'to judge is an exercise of power' and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states 'there is no objective stance but only a series of perspectives -- no neutrality, no escape from choice in judging,' I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. The Minnesota Supreme Court has given an example of this. . . As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging."

Now, I happen to agree with much of the legal realist in her (although it is not presently a very fashionable theory in law). I do think that judges are invariably affected by the experiences of their own lives and whether they want to or not, it affects their decisions. I also agree with her speech that it must be guarded against to the extent possible and the only way to do that is to try to recognize your biases and not to let them affect your decisions. I also think it is a good reason to have diversity on the bench. For any conservative who just had a stroke at the last sentence, no that doesn't mean that I think there should be unqualified judges on the bench, but that over time, having a more diversified qualified bench will be fairer. Clearly, that is the direction we are headed.

Now, nowhere in her speech did she say that, when I judge, I am partial to Hispanics or any other minority, although that is the way Jeff Sessions seems to have taken it. You know why - because his experiences in life affect his judgments too.

I know there are people who believe that there is a black and white law out there that can be easily followed. I thought so too, even through law school, until I became a lawyer. Every lawyer before every judge knows that the judge has a perspective and you can't help but hope it favors your client. Now, the fact that Judge Sotomayor and the entire committee pretend that is not the case, that doesn't make it true or not. They are politicians and entitled to all the credibility of anyone who will say or do anything to be re-elected.

I don't believe her record shows racial or sexual bias and it did not seem to me that any points were scored by that with one possible exception - the Ricci case, and I will get to that in a bit. I thought Senator Schumer did an excellent job using her immigration law cases to show that she was exactly in the middle of judges on her bench in terms of deciding asylum appeals for or against the petitioner and that she turned down far more requests than she accepted (I believe 83%). If his analysis (really his staff's analysis) is wrong, then some other Senator has to show that is so.

Before I get to Ricci, I'd like to more quickly cover three more interesting points.

A fundamental what?

This one surprised me. Supreme Court justices are appointed so that they can rule on the constitution. One of the most important things they have to decide, at some point is whether states are subject to the bill of rights in the constitution. Let me explain what this means in a couple of paragraphs.

The bill of rights contains the first ten amendments to the constitution and were added soon after the constitution was ratified. It was done because a few states and many people were unhappy that there weren't more restrictions on what the federal, not the state, government could do to them. The first eight of the bill of rights covered issues like free speech, religion, bearing arms, search and seizure, criminal rights, and so forth (don't worry about nine and ten right now). The constitution makes it clear that they applied ONLY to the federal government, although states had their own constitutions and many restricted themselves likewise.

So, how is it that some of these restrictions have come to be held to apply against the states by the Supreme Court too? Early last century Supreme Court justices applied some theories as to how some or all of the first eight amendments were "incorporated" by the "liberty" clause in the fourteenth amendment. This amendment, made after the Civil War, was added in order to prevent the states from doing certain things like depriving someone of life, liberty or property without "due process" of law. I don't want to go into what "due process" means, because that's really complicated, but for now, just think of it as meaning before the government can kill you or take your liberty or stuff, they have to give you some fair chance, like a trial where you have a meaningful opportunity to defend yourself. But, what does taking "liberty" mean?

One theory of how certain rights, say free speech for instance, gets incorporated in the meaning of liberty in the fourteenth amendment, is that liberty contains those rights in the first eight amendments which are "fundamental."

Getting back to our nominee, when she was asked what "fundamental" meant, she took a very professorial tone and explained:

"That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states."

That would be great except IT'S COMPLETELY WRONG. WRONG AND BACKWARDS. Fundamental, as in fundamental rights, pretty much does actually mean exactly what we lay people think it means. In fact, a "critically important" right would be a perfect way to describe it (the Supreme Court has used a few different formulations including one Senator Hatch relied on, beginning "deeply rooted in . . . ". It definitely doesn't mean the right is "incorporated" although, that may be the result. It is just one theory some judges have used to determine whether the right is incorporated or not. To say fundamental rights are those that are incorporated is to completely beg the question. It is a theory about why some rights are incorporated and applied against the states. There are other theories, including that all the first eight are automatically incorporated, and, that no rights are incorporated.

Now, you might think (if you are a liberal, Democrat, or otherwise just want her to be confirmed and could care less what she says) that, so what -- she made a mistake in defining it and jumbled the words up, I'm sorry, that is not correct. She not only got it wrong, but so wrong, I have trouble believing she actually remembers this basic constitutional tenant. Her answer is one that, if she were the judge (and she knew the law) and an attorney in front of her said it, she probably would lambaste him or her for being so unprepared. Remember, she's not trying to pass the bar; she's supposed to be the best. This is like a professional boxer not knowing he has to go to a neutral corner when he knocks down his opponent.

Now, personally, I still don't think that disqualifies her from being a Supreme Court judge, because I believe she is very knowledgeable and has a fantastic work ethic. I can't explain why she doesn't know this, but, she'll learn, like everyone else. Nothing in her record indicates that she doesn't learn the law she needs to for a case.

Baker v. Nelson

Ready for another one where I believed she tried to play the brilliant scholar and bolloxed it up. Senator Grassley asked her whether she was familiar with the case of Baker v. Nelson, which he explained, was a same sex marriage case from the 70s which the Supreme Court refused to take because there was no federal question involved. Now, his reason for asking her was the typical political nonsense. He wanted to get her to commit now that this is precedent so that he could box her in to agreeing that she will never allow a same sex marriage case to be heard by the Supreme Court. Naturally, she wouldn't cooperate and gave the usual, it depends on the facts and case answer they all give. Doesn't matter as it's not my point. Now, when I heard him talk about the case in his question, I thought, well that was probably a one or two sentence decision which says, we refuse to take this case because .... There are thousands of Supreme Court cases which say that and there is no reason for a judge or lawyer to know them at all. They were rejected.

So, her answer surprised me. She said she hadn't read it in a long time, perhaps since law school. She didn't say, I think I may have read it, she said she had.

Now, I'm sitting in my living room watching this, and, unlike her, I have a laptop. So I look up the case, and sure enough, it was in fact a one sentence rejection which actually said even less that Senator Grassley thought it said. I would have bet anything right then if I could have my hands on a copy of her law school constitutional law text book that not only would it not have this case in it, but that it would make no mention of it. Why should it? At the time this was not a hot button issue (early 70s) and no one would have thought twice about it except the litigants. She certainly never read it. She just didn't want to look like she wasn't up on important cases.

I was disappointed that they agreed that they would talk about it the next day. And they did. And, sure enough, having looked at it, she said that she probably never read it.

This is really no big deal as I don't believe that Supreme Court justices are any more honest than anyone else. She was just participating in the horse and pony show.

The controversial cases

I will just cover quickly the two cases that the Republicans seemed concerned about, or at least thought they could cause her grief about.

The first is the Ricci v. Defestano case, recently decided by the Supreme Court. The argument is that because the Supreme Court determined that the decision which Justice Sotomayor joined in with her two colleagues was overturned, she is not qualified to be a Supreme Court judge (or, if they adopt the Obama standard of ideology counts, it shows she has an ideology that they don't like). This was a civil case where the city of New Haven, a city with more minorities (black, Hispanic, etc.) than majority white, threw out the results of some promotion tests for firefighters, because the pass rates of whites roughly doubled that of minorities.

People are often surprised to learn that the Civil Rights laws not only forbid intentional discrimination by the government, but also acts which lead to disparate impacts or results. And, they don't have to be that disparate. The EEOC uses an 80% standard. The disparate impact hear far exceeded that. The lower court wrote a long decision and determined that it was okay for the city to intentionally discriminate against the white (and 1 Hispanic) test taker who would have been promoted based on disparate treatment (intentional discrimination), by throwing the tests out, in order to avoid a likely lawsuit by minorities based on disparate impact (unintentional discrimination). Confused yet?

Judge Sotomayor's three person panel voted to affirm the district court in a summary decision. A vote to have the whole panel of second circuit judges rehear the case lost. The Supreme Court took up the matter.

In the usual five to four majority the conservatives on the court won a reversal, finding that the test was job related and business necessary (that is, we want firefighters promoted on merit, not race decisions). I agree with them, not necessarily for the reasons they give. The law is actually much more complex than I just summarized though, and I am not going into further analysis. Feel free to read the case. Title VII law is mind boggling and in my opinion, highly subjective.

I do not think that because the Sotomayor was reversed that she is not qualified to be a judge. Of course not. If so, what of the four Supreme Court judges who saw it her way (I expect my conservative friends to say, yes, they are incompetent too). But, if Obama gets to replace a conservative judge on the high court with a liberal, will that mean that no conservative judge who gets overturned will be qualified (I'm sure my liberal friends would say, yes, they would be incompetent)? If you add the two other judges on the panel with Sotomayor, the score would be 7 go 5 in favor of the city. She doesn't look so incompetent then. Sotomayor states that she just followed the law and that the Supreme Court decision changes the law. That is arguable, but not invalid.

Here's the ironic thing. The fact that the Supreme Court keeps ruling five to four with the same judges on each side shows the merits of the legal realism theory. I accept that each side believes it is just following the law (Sotomayor and the committee all acted as if the law has written in stone meaning, as if it was a brick you could put your hand around). Why do they keep ending up voting in this five to four pattern? I know. It's because of who each judge is, including their experiences and beliefs, which has an effect on their decisions. Legal realism.

The other case which was used to attack Sotomayor I can be briefer about. In Maloney v. Rice (there is another case too, but this one is enough for now), a New Yorker challenged the constitutionality of a law against possessing nunchuks (if you don't know what they are you are no Bruce Lee fan) which are two sticks or tubes tied together with a cord or chain and which can be very lethal. The challenge to the law is based on the argument that now that the Supreme Court ruled last year that the right to bear arms found in the second amendment to the constitution is a private right, to bear arms with respect to the federal government, that it should be found to be incorporated in the liberty clause of the fourteenth amendment and applied against the states. Sotomayor and her colleagues found that since the Supreme Court had not incorporated it (they declined to decide that yet), they aren't going to do it for them. However, as was pointed out during Sotomayor's hearings, conservative Court of Appeals' judges have made the same holding she did. I disagree with all of them that they did not have the right to make that decision (if they believe that's what the constitution means, then that's what they believe) but it is certainly not an anti-gun position, as her opponents seem to want us to believe. For all we know, she'd like to own a gun.

Of course, many conservatives, generally speaking, will be clamoring to find that the second amendment is a fundamental right and needs to be applied against the states. Pure hypocrisy, of course, as conservative theory has always been against the fundamental rights theory. And many liberals will be clamoring to find that it shouldn't be found fundamental, although it is, generally speaking, the only one of the bill of rights they don't seem to think should be. Pure hypocrisy, of course. If you missed the argument, if the goals of the idealogues on either side is to be hypocritical, they have succeeded beyond measure.

Isn't that what this blog always comes around to concluding?