Politics: July 2009 Archives

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.

I totally missed this. According to Dale Carpenter, the Obama Administration has endorsed all the conservative arguments against same-sex marriage. I wonder if that's a bit of an exaggeration, but it does seem as if one important argument that's roundly derided by most of my philosopher friends is present in the DOJ brief, and it's an argument that I think is exactly right (even if very unpopular among those who favor same-sex marriage).

The DOJ argues that it doesn't violate equal protection on sexual orientation grounds to fail to recognize same-sex marriage, because gay and straight people aren't getting different marriage rights as each other. Gay men are free to marry anyone of the same group that straight men are free to marry -- women. It's true that gay men can't marry other gay men, but neither can straight men. So any discrimination that's taking place isn't according to sexual orientation. Men of both orientations (gay and straight) are being treated equally. You might argue that it's unfair because one is able to marry according to their preference and the other isn't, but they are strictly speaking given the same marriage rights, and it isn't discrimination along sexual-orientation lines. There's a much better explanation of what's going on, which I'll get to in a moment. But I wanted to say that I'm glad someone left-of-center is acknowledging this, because it seems obviously true to me and seems completely the wrong way to argue that this is discrimination. (The DOJ apparently doesn't intend to argue that right now about marriage, though. The Obama position is pretty clear that there shouldn't be a federal-level recognition of same-sex marriage but that there should be a federal-level recognition of civil unions with all the civil rights that marriage would convey.)

I've seen all manner of twists of logic to try to resist this conclusion, but I don't know how you could get around it. It's not sexual-orientation discrimination to treat all gay men and straight men equally any more than Prohibition was discrimination against drinkers of alcohol. It simply wasn't. Everyone was prohibited from alcohol, not just drinkers. It certainly affects those who drink in a way that it doesn't affect those who don't, but that doesn't mean that drinkers were being discriminated against, since that would involve being singled out with a law that doesn't apply to others. Being singled out with a law that others don't care about isn't the same thing as being singled out with a law that only would apply to some people. Requiring people to wear motorcycle helmets doesn't affect me because I don't ride a motorcycle, but I'd have to wear a helmet if I were to ride one, so it's not discrimination against motorcycle riders.

Nevertheless, there's a discrimination argument that the DOJ brief doesn't acknowledge. In fact, there are two. I think these arguments are both also very obvious once you consider them, so it surprises me that they don't deal with them at all. Most people on the right on this issue don't accept these arguments, and I think there are things they can say in order to justify such resistance, but the claim in both cases does seem at least initially plausible to me.

One kind of discrimination involved with not allowing same-sex marriage is discrimination against couples on the basis of their being same-sex. The above argument is only about individuals. I don't think this would be discrimination against a gay individual, but you could much more easily argue that a couple who is same-sex is being discriminated against on the basis of their sexual orientation. Technically speaking, that's not right either. Two straight men could, in principle, decide to go against their sexual orientation and seek civil marriage. The discrimination here isn't really according to sexual orientation, then, but according to same-sex pairings vs. opposite-sex pairings. Treating a same-sex couple and an opposite-sex couple differently is discriminating against the couple who is being denied a privilege or right that the other couple is given.

(This gets immensely complicated in terms of the logic of it once you accept intersexual, transgender, or transsexual members of pairings, so I'm ignoring that for the sake of this argument. I don't think it affects what I'm trying to argue in any significant way, so I think for simplicity's sake it's not problematic to do so.)

The other argument is still about individuals but is not about sexual orientation at all. Denying a man the right to marry another man is discrimination if women are allowed that right. The same is true of denying a woman the right to marry another woman when a man can do so. But this isn't sexual-orientation discrimination. It's sex-discrimination. Men are given certain rights or privileges not given to women, and women have rights or privileges men don't have. This argument seems to me that it should be utterly obvious once it's made clear.

A friend of mine on Facebook left a comment in response to a status update to the effect that there's an inconsistency in much of the rhetoric from the left when it comes to our attitude toward the next generation. I think this is a problem for both sides, actually. You can often find people who will issue very harsh criticisms of those on the other side for ignoring the devastating consequences of either inaction or a particular course of action on a certain issue, while the same people will ignore the devastating consequences of inaction or a certain course of action on a different issue.

You hear a lot about how we're failing in our responsibilities to the next generation if we allow climate change to continue at the rate it's going. Yet the same people who make these urgent calls to think about the next generation are happy to spend massive amounts of money that we couldn't hope to pay for in several generations, even if (as is likely) President Obama has to settle for significant departures from his campaign promises about taxes. (See note 1 below for more on this, which I decided was too intrusive to my argument to keep here.)

I would add that they're also happy to impose regulations that will almost certainly generate hardships for lower-earning wage-earners both in making it more difficult to buy new houses and cars with something like the cap-and-trade proposal currently at work or providing health insurance for people who don't have it, at the cost of making health care much worse on the whole for many people, including lower wage-earners whose employer currently does provide health insurance but who will be forced to move to worse health insurance as a result. (See note 2 for my own situation with respect to this, which I wanted to say something about but was also becoming too intrusive to my argument.)

But on the right, you can have similar inconsistencies. Some conservatives favor significant environmental regulation, but most want it limited. Some reject it entirely. Some of those who reject it are nevertheless environmentally conscious, taking it to be a problem we should do something about. For example, Dick Cheney, who is very generous with his money with regard to charitable donations, gives quite a lot of money every year to conservation-related charities, a good portion of of which (I believe) goes toward exploring technologies that will help deal with environmental problems more effectively than regulation could ever do. But there are conservatives who are simply not interested in environmental concerns, who nevertheless put a lot of effort into criticizing the Obama Administration and the current Democratic-led Congress for not caring about the future generations with their ridiculous levels of spending and regulation that will certainly have a negative impact on the next generation.

There's an ongoing debate about exactly what role senators should have in the process of confirming judicial nominees. The Constitution gives the President the role of appointing people to certain positions, including "Judges of the Supreme Court", but this role is qualified. It is to be done "by and with the Advice and Consent of the Senate".

At this point there are two main views about what that advice and consent is supposed to be. Some senators have consistently maintained that ideology can play a role. If a senator disapproves of the ideology or perceived ideology of the nominee, it's perfectly fine to vote against the person's confirmation. Other senators have consistently maintained the view that senators should give significant deference to the president, voting to confirm any mainstream nominee who is qualified enough, even if the person tends significantly to the other side of the political spectrum or to a contrary judicial philosophy.

There are reasons for each view. Deference to the president makes some sense. When we vote for president, we do so while knowing what sort of judges the candidate is likely to appoint. Anyone who voted for Barack Obama while thinking he would appoint judicial conservatives to the bench is an idiot. Anyone who voted for George W. Bush while expecting him to appoint liberal justices to the Supreme Court wasn't paying attention to the kinds of justices he said he admired and would appoint. Mistakes can happen (as with Justice Souter with Bush's father), but you shouldn't expect your preferences to be fulfilled with judicial appointments if you vote for someone for president who has opposite preferences. Senators on the other side might say that elections have consequences and that presidents are owed some deference due to the political process. On the other hand, elections have consequences. Senators are elected. They represent the preferences of their constituents, and isn't the function of senators in judicial appointments part of what you should consider when you vote for someone for that office? So even on the democratic process argument, you might think it cuts both ways.

But other considerations have been offered against giving presidents a lot of deference on judicial nominations. One problem is that you still need to decide when to defer and when not to defer. How far outside the mainstream counts as sufficiently outside? Chief Justice Roberts and Justice Alito were both presented by Democratic senators as being outside the mainstream of conservative thought on evidence that's actually pretty similar to the evidence being used to argue that Judge Sotomayor is not outside the mainstream of judicial thought. It turns out, then, that this view isn't really a coherent, unified position. It's not about whether to give the president deference but about how much deference to give the president.

No one wants the Senate to rubber-stamp whoever the nominee is no matter what, so qualifications must matter, but it's not clear the ideological considerations are really separate from qualifications. Some would argue that an ideology that's very extreme actually disqualifies someone from being a good judge, because a good judge would interpret the law accurately and fairly, and extremist judges of certain sorts do not. But according to a judicial conservative, liberal jurisprudence then counts as a lack of qualifications. Any nominee who is ideologically liberal in terms of judicial philosophy is not a qualified nominee, and senators can vote against them on that basis and call it a matter of the nominee not being qualified.

So I'm no longer sure that the distinction between qualifications and ideology really explains much in terms of what senators should pay attention to, at least not in any way that will be agreed upon by a significant number of senators. Several other considerations also might favor looking to ideology. Some have argued that too much deference to the president leads to extremist judges on both sides, since presidents will get away with as much as they can if the Senate just defers.

We start off with Senator Jon Kyl (R-AZ) today. The senators are going through their second round, limited to 20 minutes each instead of 30 (and most aren't using the full time either).

I'm only going to comment if anything new occurs. A lot of these second-round questions are simply rehashing what they've talked about before.

Kyl challenges her on Ricci. She says she decided the case based on Second Circuit precedent. That applies in the original hearing of the case. She voted on the case the same way in the en banc review, when the whole Second Circuit heard it. He wants to know why she voted not to hear it en banc, given that precedent wouldn't bind her at that point. The district court decision doesn't bind her, and the Second Circuit precedent doesn't apply. So he wants to know what bound her to decide the same way then.

She says the three-judge panel opinion she issued was now precedent, making the district court opinion precedent. He says the Supreme Court said there was no precedent. She says that was on whether the circuit court decision used the right standard. Two provisions of Title VII need to be assured to be consistent with each other. That issue was raised with them but not with her panel. The outcome she came to wasn't based on that. He's trying to get her to admit that she wasn't bound by precedent when it came to voting to hear the Ricci case en banc but did so vote, and he wants her to explain why in terms other than precedent, because precedent doesn't bind her at that point. She won't admit that, but as far as I can tell it's true.

He reads from Judge Cabranes saying that cases are not typically dismissed with summary judgments when they are of this import. She doesn't seem to have anything to say about that either. He says the nine Supreme Court justices all said it shouldn't have been a summary judgment. He says there were three tests: the one the appellate court used, the one the Supreme Court went with, and the one the dissent went with. But all nine of them said it shouldn't have been a summary judgment. She says she doesn't read the opinion that way.

Kyl turns to a speech discussed by Senator Hatch yesterday about justice for an individual in a district court and justice for society in an appeals court. But in the appeals court, it's still supposed to be about justice for the individual. It might have the effect of building reliance on rule of law and creating precedent, but the decision is supposed to evaluate based on the law on this case. She agrees. The legislature's contribution to policy is making law. When judges follow the rule of law, they create precedent that then have a policy impact, but it's not in the sense of making law the way Congress does.

Senator John Cornyn (R-TX) starts things off today. He's rehearsing the same worry about the different picture painted by her decisions as a judge and her public speeches, where the worry is that being less constrained on the Supreme Court would move her away from judging the way she has done on the Second Circuit and more like the picture she's presented in her speeches.

She says she stands by her words as she intended them but understands how people have taken them in a different way.

Cornyn moves on to the issue of the law being in flux. Why is the law indefinite? She says it's a matter of which legal cases apply. People bring cases because they believe precedents don't clearly answer the question at hand. They present facts that they say entitle them to relief under the law. Indefiniteness isn't about what the law is but how it's applied, and it leads people to believe it's unpredictable. Judges don't make law the way Congress does, but they apply law in new ways, as initiated by arguments of lawyers and not by judges themselves. Judges ensure the law applies to the facts, interpreted according to Congress's intent, being informed by precedents as applied to new facts.

A life experience as a prosecutor may help her understand things in a criminal case but not much in an anti-trust suit. Judges from a variety of backgrounds should increase public confidence because more issues will be addressed. It's not better addressed but it helps public confidence that all issues will be considered properly. She says in the particular paragraph she said we should ask the question as a possibility to think about. She wasn't answering it. She wasn't suggesting a difference in outcome, just a difference in process.

He keeps focusing on how physiological differences could do this. He's missing the point. She wasn't talking about physiological differences but different experiences. If he thinks men and women or whites and blacks have the same experiences, there's not much hope for her to convince him of this.

He asks if anyone asked her about views on abortion, and she says no one asked her anything about any specific issue. He asks why the White House would then assure abortion rights groups not to worry, and she says she knows no reason. She follows the law on all issues she addresses, and her record shows it.

He asks about the head partner of her firm saying she'd be clearly on the pro-choice side, and she says she never talked to him about that issue or any other social issue. She's upheld the law as it stands in every case she looked at. She upheld the Mexico City policy that prohibited federal funds for foreign abortions. She doesn't think he's read her 17-year judicial history, because he's a corporate litigator, and corporate litigators only read cases relevant to their current cases. He said she had liberal instincts, and she thinks he must be thinking equal opportunity is a liberal view, and she had pursued that as a board member of the Puerto Rican Legal Defense Fund.

He wants to know why the court's opinion in Ricci was unpublished, denying the firefighters' claims without discussing them. She says the briefs were available to the other judges when they considered whether to review it en banc, so Judge Cabranes had access to that. She can't speak for his reasons why he chose to reconsider the case. The issues of the case weren't hidden from the other judges, though. 75% of circuit court judgments are by summary order. (Right, but this is a much more major question than most.) She cites the district court's long opinion as a need not to repeat all that.

So I guess I'll liveblog at least part of this today.

Senator Patrick Leahy (D-VT): Most of this seems to be about the best characteristics of judges and the role of the judge.

Sotomayor: As a judge, her role isn't to make law. Her role is to decide whether the law, as it exists, has principles that apply to new situations. That sounds pretty good to me, although people who say that might have a wide variety of how they carry it out, and some might see others as not doing that at all.

Leahy asks her about the Ricci case (the Connecticut firefighters who weren't promoted because not enough minorities did well enough on the test for promotion). He says it's "damned if you do, damned if you don't" case, but I didn't get the set of alternatives he presented. I suspect it's a false dilemma, but I need to look more closely at what he said to be sure.

She frames the issue as about the city certifying the test vs. finding a test that would measure effectiveness without the disparate impact. Was the decision of the city based on race or based on what its view of the law required it to do? Her panel concluded it was a lawful decision under established law and 2nd Circuit precedent. The Supreme Court applied a new standard and announced it as a new standard from a different law.

Now he asks about the "wise Latina" comment. She says she gave variants of the speech to several groups of young Latina lawyers to inspire them to believe their lives and experiences will enrich the legal system, because different backgrounds do. She wanted to inspire them to become anything they wanted, as she did. She thinks the words created a misunderstanding. She doesn't believe any ethnic, racial, or gender group has an advantage in sound judging. Every person has an equal opportunity to be a good and wise judge regardless of their background and life experiences. She says her words agree with the sentiment Justice O'Connor was trying to convey. Men and women are equally capable of being wise and fair judges. Judges disagree about legal outcomes in close cases. It can't be that one of them is unwise, despite the fact that some people think that. (Legal realism coming in?) She says her record shows that she first looks to what the law requires.

Leahy moves on to guns, making it clear that she recognizes the Supreme Court's Heller case establishing an individual right to bear arms when it comes to federal laws but not establishing anything about whether states can restrict gun ownership. (That is indeed what Justice Scalia's opinion says, and the circuit courts have split on that very issue, so it will face the Supreme Court soon enough.)

She says she has friends who hunt, and one godchild of hers is an NRA member. She recognizes the individual right under the 2nd Amendment as limiting the federal government rights to restrict firearm ownership. She does well explaining incorporation. The right doesn't apply to the states. Scalia didn't actually said that. He just said he's not commenting on that issue. She says she has an open mind on that issue. She'd follow Supreme Court precedent when it speaks directly on an issue, and she did in her Maloney decision where she took the view that [Second Circuit] precedent doesn't incorporate that right, but she'd hear the arguments open-mindedly if it came up on the Supreme Court [which doesn't have any precedent on the issue, but she didn't make that completely clear].


I've been listening to some of the senators' speeches at the confirmation hearings for Judge Sotomayor's nomination to the Supreme Court. I'm not going to live-blog these hearings, at least if that means updating every time I have anything to say, but I do want to record some thoughts on the senators' opening statements today, and I may comment on the questioning that begins tomorrow. I'm linking to senators' statements if they are online. Not all of them are (at least yet).

Senator Patrick Leahy (D-VT) spends a good deal of time explaining the racist questions at Justice Thurgood Marshall's hearing, the anti-semitic questions at Justice Louis Brandeis' hearing, and the anti-Catholic assumptions of the unnamed first Catholic nominee (who I believe was Justice William Brennan). He then explains that we're in a different era, and we're beyond that now. Why then does he encourage the Republican senators not to cave to the pressure of special interest groups who are caricaturing Judge Sotomayor unless he thinks the conservative opposition to her is racially-based, and we're really not in a different era? I'm not sure which groups he means, but I haven't seen any of that from mainstream opponents of Sotomayor. There are those who have called her a racist, but it's not racist to call someone a racist if you think the view they hold is racist.

Senator Jeff Sessions (R-AL) seems to be setting the tone of possible criticisms well without being defaming. He's raising worries about things she's said and opinions she's joined or written. It's nice having a real judicial conservative running the Republican side of the committee again. He's a bit worried about certain decisions and statements from her, but he's not being strident or unfair about it at this point. He's doing a better job than most politicians do at setting forth a conservative judicial philosophy. It's good that he's the ranking member, thanks to Specter's defection (which he's now paying the price for, since he's the lowest-ranked member of this committee besides Senator Franken, who has only been a senator for about a week). I do think he's going too far, though, with some of her statements.

Senator Sessions thinks her record is clear that she defends the view that it's ok for judges to be biased, and I don't think her statements really amount to that, particularly with her view that experiences can and should inform how judges interpret the world and apply the law. How I see the meaning of the law is surely affected by my experiences in life, and there might well be ways that someone with experiences being discriminated against according to ethnicity will have a different view from me about what counts as wrongful discrimination. What's wrong with Sotomayor's view is that she assumes the person who has been discriminated against more often is going to have the right view, because she says a Latina judge will be a better judge than a white man. That's not necessarily true, but it's not the same thing as saying that a Latina judge should favor Latina people in particular cases. She's biased about what sort of people she expects to be better judges, but that's not a bias in how she will view people coming before her court, and Sessions is being a bit unfair in treating the two as the same thing.

Senator Herb Kohl (D-WI) makes the case for considering her whole record and not just going by her decisions. He's making a lot of room for the Republicans to find places to criticize, but I think he's also trying to frame some ways she'll be able to respond to those criticisms. He and his fellow Wisconsinite Senator Feingold have always struck me as less partisan than the rest of the Democrats on this committee. That's true even though Senator Feingold is probably the most liberal member of the committee in his policy views (athough maybe that's changed with some new members).

Senator Orrin Hatch (R-UT) reads off a number of then-Senator Obama's criteria when he filibustered the nomination of Judge Janice Roberts Brown to the D.C. Circuit. He arguesconvincingly that those criteria should have led to approval votes for Roberts and Alito. One signal that he's considering voting against Judge Sotomayor's confirmation, when he has never done so in the past, is that he seems to be getting fed up with the disjunct between what Democratic senators have said about Republican nominees and the official standards they present. Another sign is that he went out of his way to point out that judicial philosophy can be a qualification, and he said that presidents only get some deference for their qualified nominees. He's opening up the door for a "no" vote, and I get the sense that he's at least open to voting against her nomination, despite what many have assumed.

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