Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

26 May 2009

Judge Sotomayor and “Identity Politics”

I am on record on this blog opposing identity politics (1 and 2) . I believe the best candidate for every position (whether in law, commerce, science or politics) should win, regardless of race, gender, ethnicity, and sexual orientation. That is one of my most deeply held principles.

So why do I support the President’s selection of Judge Sonia Sotomayor for a seat on the Supreme Court? Here are the reasons.

The first may be the most important. Ever since Ronald Reagan, so-called “conservatives” have propagated a myth. They convinced much of the public that the law is like an instruction manual for a washing machine.

The law (the myth goes) is a fixed, knowable thing, which anyone who can read can understand and apply. Judges’ jobs are to read the law, apply it as written, and so serve the pleasure of an omniscient legislature or (in constitutional cases) our much-revered Framers.

To anyone who has ever been involved in a lawsuit, that myth isn’t even a good caricature of the law.

Lawsuits happen because the parties to them disagree what the law is. If one party is clearly right and the other clearly wrong, the lawsuit never gets to a jury. The trial judge decides the case, on the law alone, in a quick procedure known as “summary judgment.”

If the case does go to a jury, the jury decides only the facts. The judge decides what the law is.

By the time a case reaches the Supreme Court, judges in lower courts usually have disagreed on what the law is. Either the judges on a lower court of appeals have disagreed among themselves, or judges on different courts of appeals have disagreed how to decide the same issue in different cases.

Think about that. By the time a case reaches the Supreme Court, judges on lower courts have disagreed on what the law is. If the law is so simple and clear, how can that happen? Are lower-court judges so stupid that they can’t agree on how to run the washing machine?

When appellate courts—including the Supreme Court—decide what the law is, the so-called “text” of the legislation or Constitution is always unclear as written. That’s why the case gets to the Supreme Court. So judges look to a variety of other things to help them decide. They look at the law’s history, logic and purpose. They look at how the law fits together with other, related laws. Sometimes they consider general principles of justice and fairness. And they look at what the law’s writers (Congress or the Framers) said they were trying to accomplish in adopting the law.

Some so-called “conservative” judges call the latter point “original intent.” And they insist it’s just as clear as those instructions for the washing machine.

But again, think a minute. Even today, in the age of lie detectors, CAT scans and MRIs, we still have no reliable way of determining the “intent” of a witness sitting before us in the flesh. How much harder is it to determine the “original intent” of Framers dead now for two centuries, who lived in a time and culture inconceivably remote from ours?

Some “conservatives” think that judges should decide based on the “original intent” of people long dead. They also insist that that intent is clear and easy to see. Those are two of the dumbest ideas ever conceived by people supposedly trained in law. They are the thoughts of children who seek certitude where there is none.

In constitutional cases, these are dumb ideas for yet another reason. A large part of the Framers’ “original intent” was to create a structure of government that would last for ages. They couldn’t foresee in detail how their country and the world would change, but they knew they wanted their government to last. And being uncommonly smart, they knew that to last it must adapt. They last thing they wanted was a constitutional framework that would break, not bend, under changing circumstances. As a great judge who never made the Supreme Court once said, they devised our Constitution not as a “straitjacket, but a charter for a living people.”

Once you understand that our Framers sought adaptability above all else, is their “original intent” on any particular issue clear? Of course not. They were a diverse group of people from diverse backgrounds and cultures, including the polar opposites of North and South. Few of them left voluminous correspondence like John and Abigail Adams’. If you tried to run your washing machine by speculating on their motivations and habits of thought, you’d never get your clothes clean.

Anyway, if the law or “original intent” were as clear as myth proclaims, we wouldn’t need three levels of courts (trial courts, intermediate appellate courts, and the Supreme Court). A single trial judge could read the instructions for the washing machine and press the buttons. Clever programmers might even write a computer program to read the “text” and do a judge’s job. Then the Supreme Court could go into retirement, or it could take even fewer cases per Term than it does now.

But of course all that is nonsense. We have so many judges and two layers of appeals courts precisely because the law is uncertain and requires interpretation. We have so much dissent (and over 180 differing legal journals) precisely because no one can know, two centuries later, what the Framers would have thought and whether their few recorded thoughts would even be relevant to current social, political, economic and technological conditions.

So Judge Sotomayor was right when she said at a conference that a “court of appeals is where policy is made.” She didn’t mean that courts should replace the legislature or the Constitution. She meant that courts must consider policy when—as nearly always happens in difficult cases, like those that reach the Supreme Court—Congress or the Framers were unclear. In that respect Sotomayor was not an “activist,” as her detractors will cry, but a realist.

Judges do not make law. But in interpreting and applying unclear law (which virtually every Supreme Court case involves), they make choices. And their choices involve policy. That’s what judging is.

When King Solomon threatened to split the baby, no text on the books dictated his “decision.” Only wisdom did. Solomon knew that his threat would reveal who the real mother was. Just so, from biblical times onward judges have used their brains, hearts and intuition to do justice—an elusive concept that is not necessarily the same as law. In seeking to make judges soulless automatons, so-called “conservatives” undermine the theory and history of judging going back at least to the Bible.

Once you admit that Supreme Court justices do make policy, the next question is who should sit in their chairs. My personal credo is that the best should win, regardless of identity. But who is the best?

Appearances can be deceiving. I am on record on this blog as having high hopes for Chief Justice Roberts. He certainly cut a fine figure at his hearings. Handsome, poised, and self-confident, had had a good command of his audience and good humor. He was well spoken and appeared knowledgeable about all the cases and fine points of law that the Senate could throw at him.

But since his confirmation, I’ve had a chance to read some of his most important opinions as Chief Justice. In writing, organization and reasoning, they were mediocre or worse. I’ve had students who could write better. Apparently he is one of those people who is far more impressive in the flesh than on paper. But unfortunately his written opinions are likely to outlast his personal presence by at least a century.

And therein lies the dilemma. Unless you read a substantial part of a judicial candidate’s written work and compare that work with others’, it’s hard to know who is best. Doing that scutwork takes a lot of time. Like many others, I rely on the people who have the most at stake: the President and his staff.

Judge Sotomayor graduated summa cum laude from Princeton. She served as an editor of the Yale Law Journal, the première legal journal at the nation’s most selective law school. Apparently she comes from the top stratum of lawyers and judges in education and experience. You can’t get much better credentials than those, and you don’t garner them without brains.

Among candidates from that rarified stratum, how do we pick the “best?” It is here that Sotomayor’s realism enters. If justices really do set policy—and they do!—which is more important in appointing one, a difference of few IQ points, or life experience?

Judge Sotomayor is a woman. She therefore shares the experiences of the majority of our population—a majority that, at most, has enjoyed 22% representation on the Court, and then only for a brief period. She is also an Hispanic and therefore a member of our largest ethnic minority which (with the possible exception of Benjamin Cardozo, a Jew of Portuguese extraction) has never enjoyed representation on the high court. More important still, Sotomayor represents the struggling poor of our nation; her Puerto Rican parents raised her in public housing projects.

Can we say these rare characteristics have value? Traditionalists would argue “no,” unless you can prove that women, Hispanics and working poor think differently from others, and that their brand of thinking is better.

But our legal system itself argues for recognizing Judge Sotomayor’s unique experiences. We have juries because we want the peers of litigants, ordinary citizens, to decide the facts of civil cases and criminal defendants’ fates. Just so, we need people at the highest level of our judicial system who understand the trials and tribulations of ordinary people. Sotomayor should, by virtue of her life experience.

The diversity she can provide will promote vital social values. It will give the appearance of egalitarianism, thereby promoting public acceptance of the rule of law and social cohesion—two social values under threat today.

More important, women proved their unique value as arbiters of policy last year. Their votes gave us Barack Obama as President. Without their votes, we would be facing a White House run by a fighter pilot, no doubt fed ideas by the likes of Rush Limbaugh and Dick Cheney. I would likely be preparing to emigrate for my retirement. Women spared me that dreadful choice, and our country from further and perhaps irrevocable decline, and I will forever be grateful.

For these and many other reasons, I would like to see more women on the high court—a lot more. Call me sexist if you wish, but I have a firm conviction that women are less likely than men to favor abstractions over people, to reach impractical or unjust decisions because of their abstract intellectual attraction, to promote executive power as an end in itself, to choose war over peaceful cooperation, and to follow a (usually male) leader over a cliff. In time, their values could profoundly change our society and the world for the better.

So let’s see four or five women on the high court, the more the better. Judge Sotomayor and Justice Ginsburg seem a good start. I’ll support Sotomayor’s nomination unless a nasty skeleton jumps out of her closet. With our history’s best trained legal mind at the helm, and with all his stellar help doing the vetting, that’s not something I expect to see happen.


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