Why Conservatives are Better at Judicial Politics

As Sherrilyn and Neil both discussed, Republican Senators are throwing out questions premised on simplistic and contestable assertions about the difference between "the law" and "personal views" and about the independence of judging from background, experience, and lawless "empathy" and "heart." Questions such as "have you ever had a case in which your resolution was not based entirely on legal sources" (Response: Never; Follow-up: Then why did you rule against Frank Ricci or gun owners?). Questions suggesting that the influence of background equates to bias against those of a different background.

I share Sherrilyn's wish that Judge Sotomayor could answer these questions in a way that will result in greater public understanding of judicial impartiality and the judicial process generally. Unfortunately, it is not going to happen.

Republican committee members have succeeded in defining the framework and terms of this discussion and Judge Sotomayor task is to fit herself into that framework. So she repeatedly insists that she decides cases based on precedent, implicitly suggesting that precedent alone always leads to the conclusion. She does not mention the reasoning, logic and experience that goes into the judging process and applying precedent to analogous or distinguishable circumstances. Nor can she discuss that of course her background and experience inform her jurisprudential approach, inform how she interprets and construes indeterminate texts, statutes and other legal sources. Nor can she discuss that the background and experience of her interlocutors informs their views of the law. Nor can she state the obvious truth that legal sources alone do not get us all the way in all cases (in fact, she specifically rejects this description of the judging process as put forward by President Obama) and that judges must exercise judgment and discretion to fill -- in the gaps, which is why we call them "judges." Nor can she point out that saying background and experience affects one's views of the (often indeterminate) law or how one approaches interpreting the law is not the same as saying background and experience affect one's decision ab initio as to outcomes and which party should win and lose this case. Nor can she point out that the frequency with which justices disagree on legal issues reveals obvious differences in how each analyzes and finds the law-differences that must arise from somewhere.

She simply cannot do it -- Republicans have defined the rhetorical debate, Democrats have accepted it the terms, and so the nominee must speak on their terms. This is demonstrated by the fact that, as others have said, white/male identity is discussed as the neutral condition, rather than as itself a form of identity and experience that informs their legal views; it is demonstrated by the fact (as Neil argued) that their favored political views are discussed, without objection, as neutral, objective "law." So Judge Sotomayor must proceed as if anything other than mechanistic application of always-clear precedent is judicial lawlessness and she must pledge fealty to mechanistic input-output of a narrow, clear legal rule as the only correct way of judging. Her only task is to explain why mechanistic precedent got her to a result (almost exclusively in Ricci and Maloney, the Second Amendment incorporation case -- the only two among the thousands of cases she has decided) different than the one the questioning Republican Senator preferred. She must explain why her disfavored outcome was not simply another lawless example of allowing her personal preferences to interfere with her judging, because any outcome with which her Republican questioner disagrees runs the risk of being not true law.

Of course, buzzword populism is easy -- throwing around catchy, undefined terms can effectively control the debate if there is neither opportunity, will, nor public patience to challenge the buzzwords and demand full elaboration of ideas that Neil hopes for. It would be nice to raise the level of popular constitutionalism above buzzword populism, but that can happen only if the buzzwords (and the resulting framework for the discussion) can and will be challenged. Unfortunately, there may be no incentive to challenge the terms, at least now. As many others have argued, none of it matters-Judge Sotomayor will be confirmed easily and it may be that the buzzwords are reaching only an ever-shrinking base.

But maybe someday we can discuss law and judging in a higher, more honest, and more humanly accurate manner. Just not now.