Two Sotomayors

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The Senate Judiciary Committee voted almost along party lines yesterday to send Judge Sonia Sotomayor's nomination to the full Senate for a confirmation vote. Senator Lindsey Graham (R-SC) was the only Republican to vote in favor of her nomination. Two other senators, Senator Orrin Hatch (R-UT) and Senator Charles Grassley (R-IA), voted for the very first time in fairly lengthy Senate careers against a Supreme Court nominee. What's interesting about this is that this nominee's actual judicial record is probably more moderate than anyone else on President Obama's shortlist, and her decisions have been more moderate than several nominees Senators Hatch and Grassley have confirmed. So what's going on here?

I think there are two explanations. One has to do with our location in the history of the judicial confirmation process. The other has to do with the Two Sotomayors narrative that the Republican senators have been crafting. I've talked about the judicial confirmation process before (most recently here). I do think Republicans are getting frustrated that they've been letting Democratic judicial nominees sail through because of their commitment to give presidents deference, while Democrats have been blocking, filibustering, and voting against nominees who are as qualified and as ideologically-mainstream as the nominees Republicans have not opposed. Even some who are committed to showing presidents deference are going to moderate that commitment in such a setting if they think the judiciary is at stake because of the practical consequences of the two parties having different approaches to the amount of deference senators should give the president. This probably gives the second issue more weight than it might otherwise have, but I think it's at least a significant driving force in Republican resistance to Judge Sotomayor's nomination, even if they're not saying this in their explanations for their votes.

The explicit reason most of the Republican senators are giving depends on a running narrative from the Republican senators on the judiciary committee about the Sonia Sotomayor of her speeches and the Sonia Sotomayor of her decisions, and they want to know which one will appear on the Supreme Court if she's confirmed. Some of these differences are overstated, but some issues do raise a concern for many people. We might assume that a judge who has consistently ruled in an unbiased way in the majority of cases (which all sides agree is true of her) will continue to do so on the Supreme Court, even if she has expressed views in speeches that might seem at odds with that. It's been interesting to see some of the Democratic senators defending the speeches outright, while others have insisted on standing by her judicial record as a way of creating distance between her judicial decisions and her public statements.

Sotomayor herself has notably taken the second approach and backtracked from a number of things that she seems to have clearly endorsed in those speeches, emphasizing that her decisions have consistently applied the law and not interpreted it in light of the things the speeches seem to involve. She has articulated a view in her hearings on the relevance of foreign law to judging that sounds more like Chief Justice Roberts and Justices Scalia, Thomas, and Alito in their resistance to use of foreign law for interpreting U.S. law and the U.S. Constitution. Consider her written response to Senator Sessions' questions:

In my view, American courts should not rely on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. The Supreme Court's Eighth Amendment cases establish how the Court considers constitutional challenges to the death penalty, and I accept those decisions.

On the other hand, her speeches on the subject sounded more like Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer, who have on several occasions used foreign law as a reason to consider evolving standards of decency or a new national consensus of policy preferences as reasons to take the U.S. Constitution and U.S. laws to mean something very different from what they originally meant and have meant for the entire history of interpretation (e.g. on what constitutes cruel and unusual punishment or how to interpret due process in the 14th Amendment).

In these cases she's right to say that there were other issues, so the appeal to foreign law doesn't determine the outcome by itself, but a lot of readers have come away from the opinions with the impression that foreign law was driving it to begin with, and the justices had to find some way to justify their policy preference rather than simply deciding things according to precedent or what the text of the Constitution requires. So what she says here seems to me to be at odds with what it seems to me that these decisions she cites favorably actually do. Also, her speech on this question expressed concerns about how the United States would be viewed if we were significantly at odds with international law on important issues. A judge could be concerned about how our laws are viewed as a step toward arguing for changes in the laws via legislative process, but this statement wasn't in a speech advocating that. It was in a speech advocating the use of foreign law to get ideas for what judges in the U.S. can do.

Given a difference between her opinions as a judge and her speeches as a private citizen, the distinction between appellate judges and Supreme Court justices might make all the difference in which one of those would appear on the Supreme Court. If her views from her speeches really are worrisome, and the only thing keeping her from enacting them is that she's bound by Supreme Court precedent and Second Circuit precedent in her current role, with a Supreme Court review always possible for any decision she renders, then she will be freed from those constraints on the Supreme Court. That's why the narrative of the Two Sotomayors is still compelling for many people as an argument against her nomination. It's no defense, if this is right, to point out that most of her decisions have been in terms of legal rather than policy arguments or to point out that she hasn't based her decisions on empathy but on the law.

Now whenever two statements seem at odds, there are several options:

1. The person is being dishonest and saying two different things. In a political context, this might be (a) in order to satisfy two different audiences, and the person has no substantive views on the matter. It may be (b) to satisfy one audience who has a different view from the person, but the person's real view comes through in other contexts. It might be (c) that the person has views in the middle, but exaggerations appear in contexts where such embellishments cater to the audience and thus make the mediating position look more extreme in either direction.

2. The person actually thinks the statements are compatible. This may be (a) because they are, and critics don't get it. It may also be (b) that they aren't, and the person saying the different things hasn't realized the inconsistency.

3. The person has changed their mind.

The third option is not available in most of these cases, because Judge Sotomayor was repeatedly asked if she had changed her mind, and she didn't take that option. She instead tried to reconcile her earlier statements with what she was now saying. Also, I very much doubt 1a is true. I think Judge Sotomayor really does care about the issues she chooses to opine about, but the other views might all be at least initially plausible for some of these apparent inconsistencies. It's even possible that different ones are true of different issues. On the foreign law question, I think what she's doing is using language that sounds like it's what she should use to cater to the audience while interpreting that language in a way that's actually consistent with her initial speeches on the matter. Whether the language she is using is dishonest depends on whether she realizes that Justice Scalia, for example, or Republican senators, would mean something very different when they use the same language. I don't know the answer to that question. But it's clear to me that what she means by her distinction between using a law (in the sense of seeing it as determining the outcome) and getting ideas from a law (in the sense of seeing ways that judicial decision-making can go but not determining the outcome) isn't the same thing conservative judges would mean when they say they don't think foreign law should be used in U.S. judging. It's not clear to me that she's being dishonest here, but her position sounds more conservative than it really is.

She has made occasional statements in the confirmation process that seem more suspect to me. In conversation with Senator Jim DeMint (R-SC), Judge Sotomayor claimed that she'd never even thought about whether fetuses might have rights. I find it unlikely that very many post-Roe adult women in the United States of childbearing age or greater have never considered that question, but this is a well-educated judge who came of age in the Roe v. Wade generation and who lived in two communities who took opposite stances on the question (her community of leftist political activists in college and the often socially-conservative Latino community background at home). She said in herself that she doesn't think the courts have settled the issue fully in terms of the political debate, and she admitted to knowing Latino people who hold pro-life views (she wasn't asked her own view). She's obviously educated on the issues, but she's never even thought about whether a fetus has rights? Maybe Senator DeMint is completely making this up, since this is from his report of their private meeting, but if I were going to make something up about a nominee for political gain I would make up something much more damning than not having thought about an issue, so I don't find that very likely.

Her account of fundamental rights in response to questions about whether the right to bear arms is fundamental seems at odds with how that term is usually used. Randy Barnett points out that she's got the whole issue backwards and isn't using the term as it's generally used in such discussions, which means she either misses to whole point or is disingenuously redefining it to make her decision on the question seem more defensible in this political context. Either way, it doesn't reflect well on her.

But many of her statements do seem to be of the sort where it's hard to tell if she's knowingly speaking deceptively or if she's just using her terms differently and comes across sounding more moderate or even conservative than her speeches would lead us to believe because she's using the terms in a way judicial conservatives would not but saying things they'd say. Another example is President Obama's empathy standard, which she clearly and consistently denounced in her testimony at her hearing. She sounded like a textualist originalist at this point. But when you look at some of her actual cases and her view of Supreme Court cases that she was willing to comment on, it's hard to reconcile them with this originalist language. She has a much rosier view of what judges do than I do. She really doesn't think judges do what they're accused of when people talk about judicial activism. She doesn't think judges depart from simply applying the law in new cases, except in very rare cases. If she really thinks certain cases just go by U.S. law in the way she's been describing the judging process, then she has a much broader view than I do of what falls under that, since the Supreme Court very much did interpret the U.S. Constitution in light of how it would be interpreted if contemporary Europeans had used the same language. There have been appeals to "evolving standards of decency", which doesn't sound like applying the original meaning of the Constitution to a new setting but seems more like changing the meaning of the Constitution to fit with how we now understand the terms originally used (citing European meaning of those words as part of the argument).

The majority opinion by Justice Kennedy in a recent death penalty case included a rapid succession of policy arguments (good ones, in my view) against the use of the death penalty in cases of child rape. She doesn't think judges use policy arguments, though. They interpret the law as it stands. Yet when the Supreme Court was faced with an error in that opinion, which had claimed no precedent on death penalty for child rape, and it turned out there was a precedent in military law, they ignored it and didn't revise their arguments or decision in any way. They took their policy arguments to be determinative and precedent irrelevant. Cases like this seem to me to be a stark contrast with how she says she views the role of judges, and yet she also says that her view of how judges should rule is also her view of how judges do rule, which makes me wonder if she means the same thing I do when I use the words "interpret and apply the law" and what I mean when I say I don't think judges should make decisions based on policy preferences.

In the end I can't tell if she's being dishonest in some of these cases or if she' s just using language in a way that many who hear these statements out of context would happen to hear as meaning something other than what she seems to intend. I'm willing to give her the benefit of the doubt and attribute to her the second, because I do think that reflects better on her. But I don't think the solution to the Two Sotomayors problem is to say that her position is consistent and leave it at that, because that will leave many hearing her statements and being misled, even if it's not deliberate deception on her part. She's not always using this language to mean the same things the Chief Justice and Justice Alito did in their hearings a few years ago when asked the same questions. We at least ought to acknowledge that, even if we should recognize that there are ways to put her statements together consistently.

6 Comments

I apologize for sidetracking, Jeremy, but I wonder where you are getting this information:

Republicans [... have] been letting Democratic judicial nominees sail through because of their commitment to give presidents deference, while Democrats have been blocking, filibustering, and voting against nominees who are as qualified and as ideologically-mainstream as the nominees Republicans have not opposed.

Are you referring only to Republican behavior in the last six months, or are you including the Clinton administration? I assume the latter, because according to the DOJ, Obama has made only ten judicial nominations so far, and none have been confirmed yet. Which doesn't seem to prove your point about "sailing through," though it doesn't disprove it either.

I ask because you are saying exactly the same thing that I heard from Democrats, only reversing the parties. Democrats charged that their party in the Senate was far more generous with Bush nominees than Republicans were with Clinton nominees. I mean, you're making precisely the same complaint they did, only reversing the parties. This bothers me, because it seems like an easy enough thing to prove empirically one way or the other.

Yet I have found no single authoritative source for the actual numbers. The closest thing I've found (on an admittedly brief Googling) to an independent comparison of Republican and Democratic track records is in a recent Roll Call article:

During Clinton’s last two years, Republicans granted Judiciary Committee hearings to only 47 percent of Clinton’s appellate nominees (compared with 74 percent in 1995-96 and 79 percent in 1997-98) and blocked 56 percent of them, leaving 60 vacancies for a new Republican administration to fill.

I've found a lot of similar counts coming from partisan Democratic sources. (Patrick Leahy, for example, made several public statements along these lines.) So far, I haven't found any Republican source giving totals.

I was thinking more of Supreme Court nominees than anything else, and I think my claim is indisputable there. Since Bork, conservative nominees (Kennedy and Souter don't count) have been given a much harder time than Democratic nominees. Ginsburg and Breyer sailed through as easily as Scalia did. Thomas, Roberts, and Alito were all given a very hard time. Alito was the first Supreme Court nominee ever to have a filibuster attempted. Sotomayor is the first Democratic Supreme Court nominee to have significant opposition in a very long time. In fact, the most recent Democratic Supreme Court nominee to have even as many "no" votes as Chief Justice Roberts had (which was 22) was Justice Brandeis in 1916.

But I've seen lots of complaints about this at Bench Memos, the National Review legal blog. For example, here, here, here, here, here. There are plenty of numbers to compare there.

Those links are helpful.

With regard to Supreme Court justices alone, you appear to be correct (although I would not exclude Kennedy and Souter from the comparison). Whether this means Republicans are more deferent, though, looks like a more complicated issue.

Reagan had one SCOTUS nominee rejected (Bork) and withdrew another (Douglas Ginsburg, allegation of marijuana use). He also had two nominees heavily opposed in the final Senate vote -- Rehnquist for chief justice (65-33) and Thomas (52-48, the narrowest in a century). That much is clear. But it's also true that the indisputably conservative Antonin Scalia sailed through his final vote (98-0, held, I think, on the same day as Rehnquist's). He actually did better than Souter (90-9).

What these failed or narrow nominations seem to have in common is not ideology, but rather questions about behavior. Bork and Rehnquist were both unusually partisan figures notable as Nixon officials; Bork perpetrated the Saturday Night Massacre that provoked impeachment proceedings against Nixon, and Rehnquist was a key member of John Mitchell's Justice Department. Rehnquist was also accused in his hearings of having been involved in voter suppression in the 1960s. And of course there was the unfortunate Clarence Thomas's ordeal.

(It is true that Alito and Roberts had a hard time in the confirmation process, but it's also worth considering that they had been nominated by a president whom many Democrats by now claimed not to trust at all. By 2006, the Democratic attitude toward Bush went far beyond a lack of deference or an ideological disagreement. I note that Alito's confirmation was opposed by the ACLU for this reason: "At a time when our president has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely, America needs a Supreme Court justice who will uphold our precious civil liberties. Unfortunately, Judge Alito's record shows a willingness to support government actions that abridge individual freedoms." The ACLU had opposed only two other justices: Bork and Rehnquist, the latter when he was initially appointed to the court in 1971. This was not just about ideology; both parties were on an emergency footing at the time.)

Besides this, if we look beyond SCOTUS to the appellate courts, an interesting pattern emerges -- one that isn't defined primarily by party. Jonathan Adler pointed this out at the Volokh Conspiracy, in a couple of posts I've just discovered.

Looking at data from 1977 to 2004, Adler sees the following. For all nominations (including repeats):

President Carter had 56 appellate nominees confirmed. President Reagan had 83 appellate nominees confirmed over two terms (for an average of 41.5/term). President Bush (41) had 42 confirmed. President Clinton had 65 confirmed (an average of 32.5 term). President Bush (43) had 35 confirmed during his first term, and has had 24 confirmed since, for a total of 59. This data shows a clear, and fairly consistent, downward trend over the past thirty years.
One also sees a downward trend in the confirmation percentage of appellate appointees. These figures from the CRS reports are as follows: Carter - 91.8%; Reagan - 81.4%; Bush(41) - 77.8%; Clinton: 56.5%.

The same pattern held when a commenter examined individual nominees rather than nominations:

The comparable numbers, for the courts of appeals, for Presidents Carter, Reagan, and H.W. Bush, are 93.3%, 88.3%, and 79.2%, respectively. [...] [Clinton had 72.2%.] For President George W. Bush [as of June 2008?], the Senate has 59 confirmed of 82 nominees, or 72.0%.

So what I see here is (mainly) a larger political trend, not a clash of partisan convictions about the Senate's role. Americans (or the parties, or the Senators) as a whole have gotten more and more used to political obstruction since the 1970s. As far as success rates go, Clinton has much more in common with G.W. Bush than with Carter, and Reagan has much more in common with Carter than with G.W. Bush.

Even where philosophy comes into play, there may be other factors involved. That is, if Democrats really are more obstructionist than Republicans, it may be due to factors besides their relative deference. It seems possible that the Democrats have a more coherent vision for the Supreme Court than Republicans have, so they can simply mobilize more effectively. (I'd wager that there are far more Republicans willing to keep Roe v. Wade than there are Democrats willing to overturn it.) It also seems possible that constitutional lawyers (as a discipline and profession) identify with Democratic politicians (and vice versa), so that Republican judges look "unprofessional" and "extremist" to Democrats more often than Democratic judges do to Republicans.

The general trend toward being more partisan may well be present, but it's hard to see Bork as being about behavior when most of the complaints against him were about ideology, and it's most likely that the reason behavior even came up with Ginsburg and Thomas is because the senators on the other side were looking for some excuse to vote against them without having to base it purely on ideology. They tried to do the same thing with Alito when they brought up his very tenuous connection with Concerned Alumni for Princeton and then found one or two things that group did that no one would like. It wasn't because of this background that they decided to filibuster him. That was just a lame excuse. It was because they wanted to prevent the Supreme Court moving to the right too much. Given Rehnquist's record on the Supreme Court as its most conservative member at the time, I suspect his role in the Nixon Administration was also an excuse.

One thing I'd like to see is how these numbers are affected when you factor in which party controlled the Senate at the time and how wide a margin of control they had.

Ooh. That sounds like fun. And a good idea, too.

I'm getting my numbers mostly from here, here, and here (as well as the links I provided above and a little fact-checking at other places). Here's what I find.

During Carter's presidency, from 1977 to 1981, the Democrats held a Senate majority (61-38 and 58-41). President Carter had 93.3% of appellate nominees confirmed. He made no SCOTUS nominations.

During Reagan's first term and a half, from 1981 to 1987, the Republicans held a slightly smaller majority (53-46, 54-46, and 53-47). During his last two years, the Democrats held a majority (55-45). President Reagan had 88.3% of his appellate nominees confirmed. He had three SCOTUS nominations (including Rehnquist) confirmed while Republicans held the Senate; Bork was rejected by a Democratic Senate and then Ginsburg withdrew; then Reagan had one more confirmation by the Democratic Senate.

During all of George H.W. Bush's presidency, from 1989 to 1993, the Democrats had a majority (55-45 and 56-44). President Bush had 79.2% of his appellate nominees confirmed. He had Souter and Thomas confirmed to the Supreme Court, though Thomas narrowly.

During Bill Clinton's first two years of office, from 1993 to 1995, the Democrats held a solid majority (57-43). During the rest of his presidency, from 1995 to 2001, the Republicans had a clear majority (52-48, 55-45, 55-45). President Clinton had 72.2% of his appellate nominees confirmed. He had two SCOTUS nominees confirmed by near-unanimous votes while the Democrats had a majority.

During George W. Bush's presidency ... the first two years were strange. The Senate went back and forth for a while but remained closely divided (50-50 D, 50-50 R, 50-49 D, and 50-48 R). After that, the Republicans held a clear majority from 2003 to 2007 (51-48, 55-44). Then the Democrats sort of had a majority for the last two years (49-49). On the whole, then, the Bush years went to the Republicans. President Bush seems to have had a smaller percentage of his appellate nominations confirmed than Clinton, but I'm not sure of the final numbers. In mid-2008, the figure was 72.0%. As for SCOTUS, both Roberts (78-22) and Alito (58-42) were confirmed while the Republicans had a majority.

So ... among Supreme Court nominations since 1977, I count:

* Five Republicans confirmed by Republican Senates.
* No Republicans rejected by Republican Senates (unless Harriet Miers counts, which she may).
* No Democrats rejected by Republican Senates.
* No Democrats confirmed by Republican Senates.

* Three Republicans confirmed by Democratic Senates (one narrowly).
* One Republican rejected by Democratic Senates (plus a withdrawal).
* No Democrats rejected by Democratic Senates.
* Two Democrats confirmed by Democratic Senates.

In addition, during the same period, I count three justices confirmed with significant numbers of nay votes. All three were Republican appointees. One was narrowly confirmed by a Democratic Senate; the others were confirmed with larger margins by a Republican Senate.

There are a lot of different ways to read that information. And there are still a lot of relevant things it doesn't show. But what I find key is this: in the period since 1977, a Republican-majority Senate has never had to vote on a Democratic Supreme Court nominee. So we don't actually know what the modern Republican Party does with Democratic Supreme Court nominees when it has a majority. We've never had the chance to find out. During the same period, conversely, Democratic Senates have voted on four Republican nominees, so we have plenty of information about that.

Of course, we might be able to make observations about how each party behaves when it's in a minority. If we did that, we would say that Republican minorities voted on two Democrats (passing both by an overwhelming but not perfect margin), while Democratic minorities votes on five Republicans (putting up a fight on three and passing two unanimously).

Make what you will of that. Me, I'm getting a little dizzy and should go do something else for a while.

Very interesting. The latter half of 2008 should decrease Bush's numbers for appellate nominees considerably. His only nominees confirmed in that year were Catharina Hayes (5th Circuit, April 10), Steven Agee (4th Circuit, May 20), Raymond Kethledge (6th Circuit, June 20), and Helene White (6th Circuit, June 24, but she might count as Democratic because she was a stalled Clinton nominee Bush renominated in a deal with the two Michigan senators to get Kethledge through). I don't know where the mid-2008 point where that calculation took place, but there may well have been zero nominees confirmed after that point. I know there were quite a few remaining that had been stalled with no votes or hearings at that point, including a few in judicial emergency slots.

I should say that one reason there haven't been any Obama nominees confirmed is that there's a Supreme Court nomination that's been distracting both the Senate and the White House vetters. But the other is that Obama hasn't actually been nominating many judges. There are currently 15 spots and 4 nominations, according to Wikipedia's listings. I believe Bush had 10 nominations that hadn't been voted on by the end of his presidency, most or maybe even all of them never having received a hearing. Most of them had been sitting for well over a year, some of them more like two years.

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