David Kairys, a law professor at Temple University, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. Kairys' other books include a leading progressive critique of the law, The Politics of Law.
It's hard for me to watch the Sotomayor confirmation hearings, not only because of the Senators' generally unfocused, rambling questions. Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.
I am aware of and share the priority of getting Sonia Sotomayor seated on the Supreme Court. But there is a big gap of possibility between safely doing that and the surrender we're watching.
The senators of both parties and Judge Sotomayor often seem to be in a debate over who has the most passive vision of judging. Listening to them, one might think judges don't make decisions at all but simply write down legally required results, and have no apparent need for judgment or experience.
Contradictions go unchallenged and unaddressed. Sen. Jeff Sessions (R-Ala.), an earlier nominee for a circuit court rejected because of alleged racial improprieties whose questioning of Judge Sotomayor seemed barely competent, became the arbiter of whether Judge Sotomayor's enthusiasm for Latinas' moving into judgeships, after previously being barred from the profession based on their ethnicity and gender, was "racist." This was a constant topic of the rambling questions. (In contrast, Justice Samuel Alito was hardly questioned at all about his membership in a Princeton alumni group that opposed admission of minorities and women to that formerly all-white and all-male university, a membership he boasted about on his application for a job in the Reagan Justice Department in 1985, after the group became a notorious symbol for resistance to racial and gender equality.)
Sen. Lindsey Graham (R-Fla.), in a series of questions widely praised by reporters, pundits and senators of both parties, lectured Judge Sotomayor like a school girl called in to the principal. Some lawyers have criticized her as too demanding and aggressive from the bench, and Graham, who thought she will be confirmed and may vote for her, kindly and condescendingly advised her to think about changing her pushy ways. This from a senator who considers among his personal favorites on the Court Antonin Scalia.
Sen. Orin Hatch (R-Utah), who hates judicial activism more than Osama bin Laden, asked Judge Sotomayor why in the Ricci case she didn't help the white fireman get all the promotions at the New Haven fire department. She responded that she followed the law, which was settled in her circuit. But her ruling was inadequate and wrong, according to Hatch. This was a serious discrimination, and the other Hispanic on her circuit saw it that way. He wanted ... empathy and activism.
I didn't hear all of that dialogue because CNN cut to a pundit panel discussion of who among the senators has the most passive judicial philosophy.
Judge Sotomayor took it all in, looking, to me, subdued, aware that she was doing the confirmation dance reasonably well, and ready to take out a few senators.
Without endangering the nomination, the Democratic senators could acknowledge judicial discretion - that's why we care who's on the Court - expose judicial restraint as nonsense, explain and debate how judicial discretion should be used, and seriously criticize the current conservative majority. The only senator who seemed to recognize this great political moment was newly seated Al Franken. Here's how I've addressed these issues in a variety of writings.
There aren't legally required results in all or even most cases. (We should have an ACS study or panel to debate the percentage.) This is so for simple, straightforward reasons.
Language and interpretation do not yield required meanings of texts, be they prior cases, statutes or the Constitution. Intelligent, well meaning, honest people differ; law schools specialize in teaching students the many ways of differing.
The law embraces principles, values, and policies that conflict with no required prioritization or method for determining which takes precedence in particular circumstances.
The law embraces a range of methods and strategies of argumentation without requiring any particular one or set of them in particular circumstances.
The result is discretion, choice, which is necessarily based on some values or priorities not required by legal analysis or legal reasoning.
Often the law on a particular issue or in a particular circumstance can be clear or long-standing, which makes it appear to be required. But this is because the issue is not currently controversial. Maybe there is a consensus, or maybe folks have gotten tired of fighting about it. If it becomes controversial later, the lack of a required rule or result will be apparent.
In our system, law might be usefully characterized as a form of record keeping of interrupted fighting. Despite the elaborate explanations and the frequent references to highest principles, it is never really over - victories often have to be defended and defeats can always be challenged, in a range of ways and places including but not limited to courts. The recorded version usually tends to stand until it is challenged or becomes controversial.
Judicial activism is not consistently liberal, and judicial restraint is not consistently conservative. If one looks at the purposes and effects of particular government intrusions and places judicial activism and restraint in specific contexts, the most apparent patterns and the best generalizations are more complicated and have more to do with substantive goals than judicial means.
Conservatives tend to favor less intrusive government when it comes to regulation or interference in a free-market economy and more intrusive government when it comes to compelled conformity to religious, moral, cultural and lifestyle norms. They champion judicial activism to prohibit government intrusion on the unrestrained operation of the market and to invalidate electoral and other reforms that tend to interfere with property rights or the advantages of wealth. Liberals tend to favor less intrusive government when it comes to individual autonomy in matters of religion, morality, culture and lifestyle and more intrusive government when it comes to regulation of the economy and electoral and other democratic reforms. They champion judicial activism to prohibit government intrusion on personal freedom or imposition of compelled conformity. Both conservatives and liberals see themselves as protecting freedom and see each other as favoring impermissible government intrusion. Neither conservatives nor liberals seem seriously bothered by judicial interference and creativity or abandonment of established rules and precedents in furtherance of their higher goals.
Conservatives and liberals have each tended to advocate judicial restraint when they lose control of the courts, typically justified with the lofty stated goal of stopping the courts from interfering with the will of the people. We have become accustomed to cyclic conservative and liberal swings with accompanying complaints about activism, which mainly mask the unusually broad scope of policy making by courts in our system.