A few years ago I read an excellent book called The Marketing of Evil.  I highly recommend reading it, and it’s available for only $4.95 at the previous link.  The book includes a chapter about abortion, a copy of which I found online here.

I should stress that the following is based on anecdotal testimony of a few former abortion doctors many years ago, so the salary information and financial practices described below are not necessarily indicative of the entire industry then or now.

Even so, there are two aspects to this chapter that I find highly informative.

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Professor Matthew J. Franck gives us an excellent history of the state of abortion law in the United States in the context of the Judge Sotomayor hearings.  The sad fact is, many Americans do not know that “Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth.”  Professor Franck asks and answers, “How did Americans become so confused on this issue and how did the Supreme Court end up where it has?”  I highly recommend reading his full article, but I’ll provide some highlights here. 

He quotes the confirmation hearing Q&A:

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In my criminal law class at law school, we discussed four basic theories of “why we punish”: deterrence (“to keep them from doing it”), incarceration (“to keep those who do it away from us”), rehabilitation (“to help them stop doing it”), and retribution (“because they deserve it”).  Any punishment should fall in line with your basic theory of punishment.

It seems to me that each theory of punishment, when applied and examined, ends up needing such a degree of retribution as justification that retribution may be said to be the primary theory.  Deterrence is probably the most commonly-held theory in America, but if deterrence is our primary motivator, we should chop the hands off of teenage shoplifters; that would deter!  We don’t do that because we don’t think they deserve to have their hands chopped off. That punishment strikes us as cruel and unusual in comparison to the weight of the crime.  I find incarceration equally problematic (we could lock up criminals indefinitely), and rehabilitation is foolish because it doesn’t (can’t?) work.  Ultimately, the other theories lead to obvious injustices unless they have retribution as a foundation, notwithstanding critics that claim the retributive theory is too “vengeful.” 

One of the best explanations of the problems with the deterrence and rehabilitation theories is C.S. Lewis’ essay, The Humanitarian Theory of Punishment.  In the essay, he argues:

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I must confess, I haven’t been terribly concerned about the economy.  Yes, I have compassion toward those who have lost their jobs, but I consider the moral state of our nation a bit more important than the fiscal.  But now it could get ugly, as explained by the Los Angeles Police Protective League:

The early release of felons from state prison is one of the “strategies” to score budget savings. Our sources inform us that the proposed budget will result in a reduction of $ 1.2 billion in the Department of Corrections and Rehabilitation.  Although no one in the Legislature has made any of this public, we can safely guess that numbers like this translate into the early release of about 20,000 felons. 

Here are some sobering facts about early releases, based on information from independent research organizations, such as the RAND Institute: 

For every 5,000 felons who receive an early release, 45,500 new crimes will be committed over a three-year period, and 9,000 of those crimes will be violent felonies.  Applied to the 20,000 felons set for release under the budget proposal, this would result in an estimated 182,000 new crimes being committed over the next three years – 35,000 of them violent felonies! 

This relates to the purpose of this blog in that there is a philosophical debate over the purpose of incarceration, which I may post about in the future.  In any event, if one of those purposes is to punish criminals as they deserve, this means the economy will prevent society from so punishing criminals.  Does society have a moral obligation to make sure criminals (especially violent criminals) get what they deserve?  Even if not, criminals certainly won’t be greatly deterred from unlawful behavior in a society that lacks sufficient police (budget cuts will happen there, too) and jail facilities to appropriately deter public harms.

As I watched the confirmation hearings of Judge Sotomayor, I was struck with how dishonest everyone was.  One distortion after another (as noted previously by liberal law professor Seidman).  Then, as I watched the pundits discussing the merits of the judge’s record, they would occasionally discuss other political matters, such as Obama’s urgency for passing a healthcare reform bill.  Once again, I heard the politicians blatantly skew the facts, mentioning little bits and pieces of truth, along with the obligatory “buzz words,” all obviously twisted to mislead the unsuspecting public. 

Then it occurred to me: this all seems eerily familiar.  There is a reason for that.  I have worked in two large international law firms

In litigation, the name of the game is persuasion.  You must persuade the judge, and on rare occasions a jury, that your legal position is correct.  Over the course of a lawsuit there are numerous occasions where one side must attempt to persuade the judge of its position.  There may be battles over where the lawsuit will be litigated, what information must be exchanged, how it must be exchanged, whether the stated claims are legally valid, whether there is sufficient evidence to even have a trial, etc.  In all these battles, the side submitting a motion to the court has more information than the court and the other side does.  That means you paint everything to your client’s advantage, and reveal as little as possible that will hurt your client.  That, in itself, does not seem to be a huge problem; everyone has their side of the story.  However, in my career, it has led to little things like this: I drafted a motion that informed the court that 16 people did something.  However, it would look better if more people had done it.  Therefore, the partner revised the brief at that point to say “about 20.”  Not really a lie…but you get the point.  This wasn’t mere “spin.”  If I recall correctly (this was some time ago), there was no way for the court to check and find out the actual number, because we didn’t tell the court what it was.  It is not as though saying “about 20” where we could’ve said “16” abbreviated the brief in any way.  I didn’t sign the brief, so it wasn’t my decision, but I certainly felt a little unsavory.  Like a politician. 

Why can’t everyone just be completely honest and let the court (and the public) decide the matter without all the unfair slanting of facts?  Because we lawyers are paid to be advocates, not to be “fair,” and if there is some other guy that’s just as skilled a lawyer that will paint the facts in as extreme a way as possible to benefit the client, then all the other lawyers must do so to keep up (or clients will flock to that other lawyer, who will become very rich).  Similarly with politicians: if you don’t skew the facts, you will get bullied and the other guy will “win” (and you’ll quickly be out of a job). 

And that is why we have this nice quote from an interview with Texas University professor J. Budziszewski:

What do you consider to be the top threats to engaging in ethical business practices?

Budziszewski: The moment lying is accepted instead of condemned, it has to be required. Once it comes to be viewed as just another way to win, then in refusing to lie for the party, the company, or the cause, a person is not doing his or her job. Dishonoring truth is perversely regarded as a kind of duty.

I completely agree with Professor Budziszewski.  We could spend a lot of time debating the structure of politics and the legal system, and the merits of the two-party system and the attorney/client privilege, but both seem powerless in the face of lying politicians and litigants.  I’m not saying all the politicians and litigants and their attorneys out there are liars, but as it grows popular, it will become as Professor Budziszewski said: a duty to lie.  Perhaps it has already gotten there in the political world, which would explain why I am so sick of watching politicians speak on television.

Courtesy of The Believer’s Guide to Legal Issues:

The fact that she got such a laugh when she said “judges don’t make law” reveals the state of affairs in our judiciary (not to mention among Duke University law students, which are not unlike the majority of other law students across the nation).  You can expect more undemocratic law-making to come when she is confirmed.

Professor Matthew Franck provides a nice counter-point to Professor Seidman (as quoted in my last post):

Mike,

For my part I find the president’s account of the role of “empathy” in judging to be alarming, and I would welcome Judge Sotomayor’s repudiation of his arguments—if I believed her. Frankly, I don’t.

I think I know what you mean by the “official version” of what judges do. I agree with you that “applying law to facts” is too simplistic to capture the nuances of what Felix Frankfurter called “judicial judgment.” But if it’s not where I would stop, it’s not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president’s and Judge Sotomayor’s (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that’s right.

I would agree with Professor Franck that the Court’s political judgments and other characteristics (race, gender, economic theories, etc.) must be (and can be) minimized and such issues left to the legislature.  The problem comes when a truly indeterminate case arises.  In those rare cases, the Court must make a judgment where the legislature has not yet made a judgment (this is the point that Judge Sotomayor pretends does not exist, and Professor Seidman castigates her for that).  Hopefully, the Court’s judgment in those instances can be overruled by the legislature so that democracy will prevail over the judge’s opinions (which is why it is so dangerous for the Court to willfully interject its opinions as constitutional law, which cannot practically be undone).  One of the problems is that Courts are all too willing to find an “indeterminate” case where a principled answer does exist.  Additionally, where the Court must make a decision in an indeterminate case, I would hope that the judges have something more than “I’m a wise latina woman” on which to base their decision.  It is at this point that I would probably part ways with just about every law professor in the nation: I believe that the truly indeterminate cases are rare and can nevertheless be decided by objective principles rather than mere willful power. 

Georgetown Law professor Louis Michael Seidman sums up the Sotomayor testimony perfectly during this online debate:

Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

Bravo, Professor Seidman.  His remarks adequately express why I was so frustrated listening to Judge Sotomayor pretend that all she would do is “apply the law to the facts” without a hint of ideological bias or underlying philosophical presupposition.  It was like a big “emperor’s new clothes” charade–everyone in the room knew it wasn’t true, but no one would say it. 

I expect that I disagree with Professor Seidman on a great deal of legal and political philosophy, but he is right on this–even first year law students know that judges bring philosophical “baggage” with them to their cases.  And so they should.  I may disagree with Professor Seidman on what is the appropriate “baggage” to bring, but we both agree that for Judge Sotomayor to pretend that she has none is nothing less than perjury. 

The ultimate example of Sotomayor’s chicanery in these hearings is that she keeps pointing to her “record.”  Senator Schumer has chimed in by insisting that she hasn’t “made” any law in her entire record. 

Her “record” of case decisions thus far, of course, is the result of her being subject to the review of a higher court (and also of her aspirations to become a Supreme Court justice). When she is in charge as a Supreme Court justice, she will get to set the course with no oversight and no higher position to which she can aspire. That’s when we’ll see her true philosophy put into action. And that is why she’s trying to ignore her speeches and point to her “judicial record”, which has little bearing on what she’ll do when she’s cut loose from the shackles of a higher court and future confirmation hearings. Her speeches reveal the philosophy she will actually employ.

That philosophy is of the “critical legal studies” school of thought, which ultimately claims that all judicial decisions are biased and cannot help but be so, and that judges therefore should make the law whatever they think is “just” (though in my opinion they have no viable framework for determining what justice is, so they just do what they want). Judge Sotomayor is unlikely to show much restraint as a Supreme Court justice, notwithstanding her alleged “record” as a subordinate judge.

When someone has to say one thing in one context where he/she is bound by rules and oversight, and then that person says something different in a context where he/she is free to say whatever he/she wants, which do we think is more honest?

I’ve been watching the Senate confirmation hearing for Obama’s nominee to the U.S. Supreme Court, Sonia Sotomayor.  I’d like to point something out quickly.

Democrats typically ask about a judge’s “respect for precedent” as code-speak for “do you respect Roe v. Wade and will you follow it?”  Democrats don’t like to ask the latter question because it reveals their fierce dedication to abortion.  However, during the Reagan administration, Democrats defeated the nomination of Judge Robert Bork, citing, among other things, that Judge Bork (allegedly) would have decided Brown v. Board of Education (the case that integrated public schools and overturned the “separate but equal doctrine”) differently than it was decided. 

Here’s the rub: Brown v. Board of Education was a departure from precedent.  Further, there was no precedent dictating the result in Roe v. Wade.  Democrats like departure from precedent when they agree with it.  They don’t like departure from “their” precedents.  (I’ll admit that Republicans do the exact same thing, though they typically argue that they want judges to depart from bad precedent and return to an original understanding of the Constitution, not create new and unpredictable law like the liberal justices do.) 

In the hearing today, Judge Sotomayor made the disingenuous statement when questioned about her opinion about one case, “that’s the settled law so I’d be bound to follow it [as a Supreme Court justice].”  That simply is not true.  As a Supreme Court justice, there is no enforceable obligation to stare decisis.  The Court can plainly reject past cases, as it did in Brown v. Board of Education, whenever it wants to.  When she is made a Supreme Court justice, she will do whatever she wants to do, and she’ll decide to overturn any precedent she doesn’t agree with (and try to get four other justices to do the same thing).  For her to claim that she will blindly follow precedent as a Supreme Court justice flies in the face of the entire history of the United States Supreme Court. 

Of course, she will follow precedent when it suits her, and Roe v. Wade is certainly one of those precedents.  She is also sure to use the “empathy” that President Obama said he expects, whatever “empathy” even means.