On the Sotomayor Testimony: Law Professor Seidman Says it Best
July 14, 2009
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.