On the Sotomayor Testimony: Clarification

July 15, 2009

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. 

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