During the State of the Union speech, the President took the opportunity to criticize an opinion by the Supreme Court, Citizens United, to the faces of the six justices assembled there as guests of the Congress. Obama’s partisans, the Democratic House members sitting near the justices, showed the same lack of class as the President by jumping up and cheering wildly. Some seemed almost to be dancing. Per protocol, the justices are not supposed to react, but to sit there impassively, which all did, save Justice Alito. Alito managed to mouth (correctly) that what Obama said about the decision was “not true.” True to the tackiness that seems to characterize the White House, they quickly prepared a “response” to Alito in an effort to get in the last word, a response that tried to change what Obama had said. After that incident, I posted my thoughts, including the speculation that next year the justices’ seats at the speech would be empty. Justices Scalia and Thomas already declined to come because of the political circus the speech has become.

Appearing at the University of Alabama on Tuesday, Chief Justice Roberts addressed the incident at the State of the Union speech in a response to a thoughtful question by a law student. “I have no problems with that [criticizing Supreme Court opinions],” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according the requirements of protocol - has to sit there expressionless, I think is very troubling.” “I’m not sure why we’re there,” he continued.

As expected, as the article shows, the pathetic Pillsbury doughboy of presidential press secretary, the buffoonish Robert Gibbs, has to try to get in the last word.

I  would at this point consider an appearance by the justices at next year’s State of the Union speech extremely unlikely, which will only cause further embarrassment to Obama by detracting from his event. Instead, people will be reminded of his boorishness at this year’s speech.

Thanks to L.A. County Superior Court Judge Lawrence Mira (my wife’s boss), my wife and I were able to attend a conference/gathering with Supreme Court Justice Anthony Kennedy at Pepperdine Law School. Justice Kennedy was in good form. I have met him before and had a chance to talk with him, when he visited my law school and I was asked by the then-Dean to introduce him to the students.

Kennedy is a very warm and personable man. He answered many questions in a thoughtful manner, but was also quick on his feet with quips and humorous stories. My favorite was his story of visiting some federal practice attorneys in Alabama. They asked him whether he actually read all the briefs. He replied that he enjoyed listening to opera, so he would read the briefs at home listening to opera. Depending on length and subject matter, some briefs were one-opera briefs, others were two-opera briefs, with the occasional three-opera brief. Kennedy related how those Alabama attorneys must have thought him to be some snooty elitist from D.C., talking about opera. But one of the attorneys responded that he had a similar system when writing briefs to the court. There was the one six-pack brief, the two six-pack brief….

Kennedy gave some insight into the Court’s process and his (guarded) opinions about other justices. He expounded on constitutional interpretation and the roles of advocates and judges. He also explained his philosophy of judging. That turned out to be no philosophy at all, as he cheerfully conceded. This is where I am troubled by Kennedy. His lack of a consistent philosophy shows in his opinions. He defends his approach by claiming that subscribing to a particular approach might cause the judge to pay more attention to complying with the philosophy than considering the case on its own merits. One can read this as a not-too-subtle dig at Justice Scalia and, perhaps, at Justice Thomas.

There are several problems with Kennedy’s approach. First, from a precedential standpoint, his approach fits well with his positioning himself as a “centrist” or “swing” vote. Justice O’Connor on the right and, less effectively due to the slight rightward tilt of the Court, Justice Souter on the left used to play those roles before they retired. Justice Kennedy’s counterpart on the Left today (and heir to Justice Souter) would be Justice Breyer. Such swing justices can have significant effect on the immediate cases. Their presence can certainly be useful to smooth out ideological and jurisprudential differences among the justices and to lend constitutional movement a more appropriately incremental, evolutionary cast. But their opinions often have little staying power, and their influence wanes quickly after they leave the Court. More jurisprudentially rigorous and principled justices, such as Scalia, are playing long ball. Many of their opinions, too, will lose force once they leave the Court, but some will become dominant doctrine in the future. These are the justices whose legacy is more likely to be remembered.

Second, institutionally speaking, the Supreme Court is different from trial courts or intermediate appellate courts. The Supreme Court is a “court of law, not a court of error.” Developing law requires attention to predictability and consistency. That is best accomplished within a jurisprudential framework that gives form to the decisions over time. For example, Justice Scalia’s “original meaning” framework gives a cohesiveness across cases that lends legitimacy to the result. As Justice Kennedy noted, the Court has to explain its decisions, which gain legitimacy through the reasoning. Having a rigorous analytical approach that constrains the subjectivity of judges’ decisions furthers that legitimacy. Moreover, it is unlikely that a specified jurisprudential framework will imprison the judge’s will. Judges are not known for being shy about making known their ideological views and impressing them on their decisions. At most, a jurisprudential framework will have the salutary effect of braking the natural tendency of the justices to decide cases according to their preferences.

Third, even if a justice shuns a jurisprudential framework, he or she is still likely to clothe an opinion with references to precedent. Precedent, too, is intended to constrain variability and promote consistency and predictability. Even judges such as Justice Kennedy pay formal homage to precedent and will even adhere to precedent, at least when it serves his purpose. No judge disclaims fealty to the doctrine of stare decisis. As an aside, even were a judge to do so, that, too, would be a jurisprudential approach, at least of sorts.

Justice Kennedy also defended the use of foreign law in Supreme Court opinions. He declared that such use was merely a recognition that the decision reached by the Court was supported by common attitudes in other countries. The use of foreign law operates as an affirmation of the Court’s decision, not as the basis of that decision. In support, he referred to the Declaration of Independence language about decent respect for the opinions of mankind requiring an explanation for what the Americans did there.

This rationalization is unconvincing. First off, the Declaration is not a legal document, but a manifesto that seeks political justification for a revolution and diplomatic and military alliances with foreign nations. Second, Justice Scalia has done a thorough job destroying the argument in favor of the use of foreign legal sources in his debate with Justice Breyer at American University a few years ago. There is no reason to seek “affirmation” from foreign courts for decisions involving the American Constitution. There is no democratic connection or a shared political culture with those foreign courts. Those courts come from a different legal culture and tradition, as well. Moreover, those courts were not around when the framers adopted the Constitution. If references to foreign law do not determine the outcome, as Justice Kennedy has assured, they are meaningless and should be omitted from official cases. As Justice Scalia has pointed out, justices are free to read foreign legal sources and comment on them outside the written opinions, such as at conferences.

One more point. Justice Kennedy averred that the reason he is not confining his search for constitutionally protected rights to those expressly protected in the language of the document is that, had the framers thought that they could foresee all the particular aspects of liberty, they would have written them down. But they protected “liberty” more broadly. Leaving aside the obvious point whether the protection of liberty in the due process clause(s) was intended to be more than a protection of a fair trial before incarceration, there are significant problems with Justice Kennedy’s conception of “substantive due process.” Obviously the framers did not intend the list of protections in the Bill of Rights to be an exhaustive recitation of all rights a person might have. The Ninth Amendment confirms that.

But the real issue is how, and by whom, the balance between the exercise of individual liberty and the community’s need for order was to be struck. That’s why an originalist such as Scalia (and, contrary to current academic fiction, there were many originalists before Scalia) would argue that, in the absence of express language of constitutional protection for some claimed right, that balance was to be struck by the political process, not by the courts. “Liberty,” after all, is a very expansive concept. Law is an ordering device that seeks, first and foremost, to control liberty. My liberty to kill my neighbor is controlled by law just as much as my liberty to engage in consensual sexual conduct or to make consensual contracts of employment.

The problem under the Kennedy approach is to decide how to separate constitutionally recognized liberty interests that are protected just as much as if they had been expressly enumerated from those that do not so qualify. That task has led to charges of result-orientation and ideologically-motivated judging. Justice Kennedy declared that each generation must be able to give constitutional content to its values. If that is so, however, and leaving aside Justice Kennedy’s own objection to popular influence over constitutional content in Planned Parenthood v. Casey, which branch best reflects those popular values, the unelected and isolated federal judges or the popularly-elected legislatures? Which process best reflects the requisite flexibility to allow each generation to shape the Constitution? Is it to constitutionalize issues so that any change is difficult to achieve except by constitutional amendment or the laborious process of overriding decisions? Or is it by leaving decisions not specifically taken from majoritarian control by the express words of the Constitution within the more flexible and responsive political process?

These questions demand much fuller discussion. Justice Kennedy raised these questions, and I believe that he failed to answer them adequately. That said, I wish that our school would make a concerted effort to bring Supreme Court justices to campus, a task at which Pepperdine and, to a degree, Chapman, have been quite successful. Instead, we will bring in yet another post-modern Leftist to demonstrate exclusively how various identity groups are oppressed by America’s endemic and subconscious racism, sexism, homophobia, and other evils that occupy the fevered imaginations of typical academics.

In the un-reality that constitutes the liberal universe, the disrespectful guy at the SOTU speech was Justice Alito. Some Lefties are denouncing this as Alito’s “Joe Wilson moment.” No doubt they will be looking to impeach him for not showing the proper obeisance that the liege Obama is due. But, back down on Earth, the reality is quite different.

I believe that on only nine prior occasions in the history of the U.S. has the President criticized the Supreme Court in a SOTU speech, and then only in guarded and indirect language. That is not to say that Presidents and candidates for the office have not vigorously criticized the Court and specific rulings of the Court. They have, from at least Jefferson on. Jackson’s 1832 Bank Veto, Lincoln’s opposition to the Dred Scott case, FDR’s attacks on the “Nine Old Men,” Nixon’s attacks on the Warren Court, and others show a long history of vigorous political attacks on the Court, mostly deserved.

But the Justices are the Congress’s guests at the SOTU speech. They have come out of respect for the President and the occasion. It is telling that the President signaled his gross breach of decorum by beginning the sentence, “With all due deference to the separation of powers.” One wry interpretation of this trope (or its relative, “with all due respect”) is that the more the speaker uses it, the less he means it. Of course, body language and tone become important measures of the meaning the speaker intends to convey. The President’s tone of voice as he said it was exceedingly dismissive, so it was clear that he was not using the phrase sincerely.

Mr. Obama showed the complete lack of class of which many of us have suspected him. Putting on a nice suit and cultivating an aura of cool does not transform the Chicago pol into someone with class. In this way, at least, Obama is showing that he is the non-Bush. Had Bush done anything like this, the Democrats and the media would be howling. The President’s Democratic lackeys who gave him a standing ovation (not surprisingly, led by Senator Chuckie Schumer) equally demonstrated their lack of pedigree.

All that Justice Alito did was quietly mouth the words that constitutional law professor Obama’s statements were untrue. Which, of course, they were. Trying to gild the lily, the White House today was giving an entirely different spin to words that were very plain. Unlike Joe Wilson, Justice Alito preserved the decorum of the occasion. I probably would have risen and left. The Justices do not have the President’s “bully pulpit,” as Theodore Roosevelt described it. So, mouthing words so quietly that Justice Sotomayor, sitting next to him, did not even react, all in the hubbub of a raucous ovation, hardly qualifies as a Joe Wilson moment.

It was noteworthy that the liberal justices sat stone-faced, as well. With Obama trying to be a poor imitation of FDR and bully the Court, he may find that the institutional loyalties even of justices politically sympathetic to him will override their personal views and cause them to close ranks against the President. That was typically what happened even during the New Deal.

This year, Justice Stevens probably did not attend due to his age. I wonder, though, why Justices Scalia and Thomas did not go. There may well be a gaping hole in the Supreme Court’s reserved seating at the next SOTU speech.

Incidentally, liberals, especially in the legal profession, are very prickly when it comes to even the appearance of imagined attacks on the courts’ “independence.” So one would expect to hear immediate criticism of Obama’s speech from the Left. Of course, that won’t happen. On the other hand, libertarian Professor Randy Barnett agrees. So does the Wall Street Journal, which also accuses the President of lacking grace under pressure and acting out of (political) desperation.

Left wing blogs recently went into overdrive deriding Rush Limbaugh having temporarily been taken in by a false claim that Obama’s Columbia thesis finally had been released and contained various statements that could be read as contemptuous of the U.S. and the founders of the country. BTW, it is claimed that Obama wrote no college thesis, unlike other Columbia seniors, only an honors seminar paper or thesis that no one can find. The press can, of course, quickly find the college thesis of the Republican gubernatorial candidate in Virginia and records of the debates over the book purchases by the Wasilla public library during Sarah Palin’s tenure as mayor. Likewise, the Obama college transcripts have not been released, whereas the press demanded the much earlier transcripts of George W. Bush. Likewise, George W. Bush’s complete military records were released (and, in the case of Dan Rather, reporting, forged), while John F. Kerry’s were not. Ditto for Bob Dole’s medical records versus not for Bill Clinton’s. One detects a pattern.

Considering the numerous times that they have been fooled by information that was available much longer than the fake Obama thesis (such as the racially-loaded statements falsely attributed to Limbaugh), one would have thought the Left would keep a low profile. One would have thought so in vain. Well, no sooner has the dust settled over the Left’s Limbaugh defamation, than they defame Justice Antonin Scalia, again with false attributions of racial remarks.

What is it with the Left and their false charges of racially-loaded remarks? I am not even convinced that they do this on purpose. It is as if their constant invocation of race and their inability to see social issues through other than a racial prism have so distorted their faculties for critical thinking that they see the racial result they want to see even when it isn’t there. Just so long as it confirms their prejudices about others.

As an aside, I particularly enjoyed the author’s list of repeated liberal offenses against truth and fairness in reporting and his take-down of the legal commentator for C-BS, the network that at least practices truth-in-advertising in its name. This commentator, Andrew Cohen, predictably matches the ideological tone of his bosses in presenting biased accounts of Justice Scalia, as NRO’s Ed Whelan lays out in his post, “Andrew Cohen’s Evidence-Free Anti-Scalia Jeremiad.”

Of course, there is no apology and no clear correction, even when the falsity is exposed. The problem is that, with the function of the Internet, these false statements will be thoughtlessly reproduced and find their way into history.

Today is the opening of the Supreme Court’s 2009-2010 term. On tap are a number of interesting and potentially significant cases. The Court is expected to resolve shortly the campaign finance reform/free speech controversy in the Citizens United v FEC case (the “Hillary Movie” dispute), which is likely to result at the very least in a significant reinterpretation of the statute’s application to non-profit pro forma “corporations.” There is also a solid possibility that the Court will overturn an earlier outlier precedent on the limits of corporations’ political speech, along with a section of the McCain-Feingold Campaign Finance and Constitutional Travesty Act of 2002. The result likely will depend on the willingness of Chief Justice Roberts and Justice Alito to abandon their preference for upholding even bad precedent and move boldly in the direction in which the Court has taken baby steps.

Another free speech case is United States v. Stevens. That case involves the criminalization of depictions of animal cruelty, with an exception for depictions that have serious artistic, scientific, etc., value. The federal statute has been defended as targeting a category of speech with low social value and significant social harm (animal cruelty). Conversely, it has been attacked on overbreadth grounds as targeting significant amounts of protected speech in relation to the small amount of harmful speech. Moreover, the defendant (who did not engage in animal cruelty or film the video) claims that the legislative creation of categories of speech that are outside the first amendment is disfavored, and that, here, the state lacks a compelling interest to prohibit his speech. (The Congress had justified the statute on grounds of targeting a specific kind of video, not animal cruelty in general, an interest it had specifically disavowed.)

Another First Amendment case, though not a free speech case, is Salazar v. Buono. That case involves a cross on formerly federal land. The cross was placed in the middle of the Mojave Desert in 1934 by the VFW in honor of WW I dead. It is maintained by VFW members. in 1999, someone complained. The Park Service wanted to remove the cross, which was then on federal land. Congress denied the Park Service money to do so. The federal courts then found the cross a violation of the Establishment Clause. Congress then made the area a national memorial and gave an acre of the land, including the site of the cross, to the VFW in exchange for five acres of other land that the organization owned. The cross currently has a cardboard box that covers it, lest someone inadvertently suffers psychological damage from seeing a cross in the middle of the desert far from an interstate or other well-traveled highway. The case raises issues about similar monuments, e.g. the Argonne Cross in Arlington National Cemetery. Constitutionally, the problem is whether Congress is sufficiently involved to be seen by the knowledgeable observer as endorsing the cross. There is also the lack of other monuments that might dilute the religious aspect of the display, as well as the blatantly religious meaning of the cross. On the other hand, there is its remote location, its history, and the fact that the knowledgeable observer would know that the cross is a war memorial set up by a private organization. That, and the threat to other monuments of this type if the Court rules against the cross.

An interesting non-First Amendment case is McDonald v. Chicago. The case involves the question left unresolved in DC v. Heller, whether the Second Amendment applies against the states, and how. The arguments focus on the historical understanding of the Fourteenth Amendment’s privileges or immunities clause, and the interpretation of “fundamental principles of ordered liberty” under that amendment’s due process clause. If the Second Amendment is held to apply against the states, as the predictions overwhelmingly indicate (and I agree, based on the Heller court’s strong hints), it likely will come under the due process clause. There is considerable historical inertia against using the privileges/immunities clause as a vehicle for incorporation, though I think that, based on the Congressional debates and the origins of the Fourteenth Amendment as a constitutional foundation for the controversial Civil Rights Act of 1866, the clause actually is the better source as a direct basis for protection of gun ownership for self-defense. If the Court applies the Second Amendment against the states, it will be interesting to see what the standard of review will be for state laws, a matter left unresolved in the Heller case, as well, but more important for the more frequent enactment of state laws in this field. Stay tuned for more litigation.

An odd First Amendment-related case is Holder v. Humanitarian Law Project. That case argues the unconstitutionality under the First Amendment of several phrases in the Patriot Act amendments to a Clinton-era statute that prohibits providing “material support” to terrorist groups. That statute is very important to the government in going after terrorist organizations and their supporters. The challengers here are concerned that some of these terms will prevent them from providing advice to terrorist groups (the Kurdish PKK and the Sri Lankan Tamil Tigers) for non-violent lawful matters. The 9th Circuit agreed with the government on most aspects of the challenge, but held several important clauses to be unconstitutionally vague. Given the importance of combating terrorists, and given the Court’s hostility to facial challenges, it will be interesting to see whether the government overrules this and decides to wait for an actual “as applied” challenge if the feds go after protected speech activity under the law.

The last case I want to mention here is one that the Court has let languish since early this summer. It involves the challenge by 13 Uighurs at Guantanamo, Kiyemba v. Obama. They have been cleared on being unlawful enemy combatants because their affiliation with terrorist groups targets China. Since the Chinese would likely torture them if the Uighurs were returned to China, the U.S. has been trying to get other countries to take them. So far, there has been limited success in getting Palau and Bermuda to take some. A district court ordered that the Uighurs be released into the U.S. The D.C. Circuit Court of Appeals overturned that decision. Congress has, since then, severely restricted the transfer of Gitmo detainees into the U.S.

The Supreme Court seems to be waiting for some further diplomatic efforts to bear fruit. But this potential clash between the historically dominant power of the political branches over who gets entry into the U.S. and the Court’s increasing boldness in matters relating to the Gitmo detainees’ detention cannot be avoided forever. Sooner or later, the matter will need to be addressed, as there are also some detainees who want to avoid being sent to certain countries and are preparing to challenge the President’s power to transfer them without their consent.

With Justice John Paul Stevens hiring only one law clerk for next year, there is considerable (justified) speculation that he plans to retire. Justice Stevens has the reputation that he, more than any of the others, writes his own opinions. But it is unlikely that he wants to increase his workload at his age by reducing the number of clerks he hires. It’ll be interesting to see who President Obama nominates as a replacement. Three names that have to be on the permanent Obama short list: Solicitor General (and former Harvard Law dean) Elana Kagan, State Department legal adviser (and former Yale Law dean) Harold Koh, and 7th Circuit judge (and former Obama fellow-lecturer at U. of Chicago Law) Diane Wood.

In my blogging about Judge Sotomayor’s nomination, I forgot to mention her dissent in a Voting Rights Act case. The case was a challenge to Massachusetts’s enactment of a state constitutional amendment that disenfranchises felons. Many states, though far from all, prohibit voting by incarcerated felons. A minority of states continues that disenfranchisement even after release, until the felon has applied for, and received, a gubernatorial pardon. Felons have long been seen by Democrats as a potential constituency. It was surprising, then, that a liberal Democratic state as Massachusetts would approve a the disenfranchisement of this electoral group, though, perhaps, Democrats believe that their political position in Massachusetts is secure enough even without an assist from imprisoned felons. The catalyst for the action apparently was the formation of a political action committee by incarcerated felons to lobby the legislature. Even the reputedly tolerant voters of Massachusetts were not amused and overwhelmingly approved the state constitutional amendment that takes away the voting privilege.

The amendment was challenged as violating the Voting Rights Act. The federal First Circuit Court of Appeals rejected the challenge. In reaching that result, the court joins the other two federal circuits that have considered such challenges, the Eleventh and Second Circuits. The Second Circuit’s case, Hayden v. Pataki, was a challenge to New York State’s similar disenfranchisement of incarcerated felons. Sotomayor sat on that Second Circuit panel. The majority rejected the challenge. She dissented.

Her dissent was completely unwarranted. The Voting Rights Act is a remedial statute that, according to well-established Supreme Court precedents that interpret Congress’s powers under the 13th, 14th, and 15th Amendments, must remedy demonstrable constitutional violations. Those violations must be by state action when the law in question is adopted under the 14th and 15th Amendments, as is the Voting Rights Act. However, Section 2 of the Fourteenth Amendment specifically approves of state denial of voting rights for criminals. Therefore, such state action is not a violation of these Amendments, and there cannot be a federal “remedy” against such state laws. Moreover, any attempt to interpret the VRA’s coverage broadly runs afoul of the Supreme Court’s clear direction (admittedly since Sotomayor’s dissent) that it is losing patience with the Voting Rights Act as a remedial measure for anything other than, perhaps, literacy tests and poll taxes.

Once again, Sotomayor’s position on a major controversial constitutional issue was on the far liberal side and contrary to the judicial mainstream at the appellate court level, the Supreme Court’s own trend, and the Constitution’s text.

It is 2011, and the death of Justice John Paul Stevens has brought another opportunity for President Obama to nominate someone to the Supreme Court. Following his success with Sonia Sotomayor, the President has determined that the best path is the one that brought him success with her. The Senate Judiciary Committee is holding hearings on the nominee, federal court of appeals judge Pat Queen. Some excerpts:

Sen. Pat Leahy (D-Vt.): You certainly have a compelling life story, a story that has been misrepresented by your opponents as “freakish” and a result of “identity politics.” They make the scurrilous charge that you were chosen for reasons of your ethnicity and the like. Here is your chance to refute those critics.

Judge Queen: Thank you, Senator. I believe that I represent so many ingredients in the beautiful salad that is America. I was going to say “stew” but, as a vegan, I believe that conjures up images of the genocide, or I should say faunicide, of so many Bovine-Americans. The blood of so many cultures runs through my veins, from my mother’s pinoy father, who came to work in the sugar fields in Hawaii, to my mother’s mother who is half-native Hawaiian, half-African. Then there is my father’s father, Salvador Reyes, who came from Mexico to work in the strawberry fields in California and married his bride, a half-Cheyenne, half-Ukrainian. Not that we are conscious of such things….

Sen. Jeff Sessions (R-AL): Judge Queen, you said that your paternal grandfather’s name was Reyes. Yet your name is Queen. How did that come to be?

Judge Queen: Senator, this is another example of how I represent the aspirations of all Americans. Denying my grandfather’s proud mestizo heritage, my father changed his name to King, in a squalid attempt to “assimilate.” He always told us that he disliked the whole hyphenated-American label, and that the U.S. was a melting pot. There were even rumors he was a Republican. As I explain in my autobiography, My Nightmare Of A Father, we considered him a “coconut,” brown on the outside, white on the inside.

Sen. Sessions: But how did you get your name, “Pat Queen”?

Judge Queen: As you know, I was born a male, but became part of our community of Transgendered-Americans.

Sen. Sessions: Are those “drag queens” that wear female clothing? Is that why you changed your name?

Judge Queen: No, Senator, wrong on several levels. That is not why I changed my name. You are referring not to the Transgendered-American community to which I belong, but to the Transvestite-American community to which I once belonged. And “drag queen” is offensive to them. It makes them sound flamboyant, as if they were exhibitionists appearing in Vegas shows or something. So, I changed my name to reflect my new sense of self as a female. Also, I was lucky. I didn’t have to change my first name.

Sen. Sessions: So, you are still male genetically? Have you finished the process of becoming female physically?

Judge Queen: Not entirely. I have chosen not to make the, ahh, final cut. I prefer to have both female and male characteristics. I’m all about choice.

Sen. Sessions: Now, you have a life partner, who is female. Am I correct?

Judge Queen: Yes. My attraction has always been towards women.

Sen. Sessions: Then, why did you not just stay fully male?

Judge Queen: Senator, as scholarship in Feminist Studies and Queer Studies has shown, male and female are merely roles assigned to individuals by the dominant patriarchy to oppress and exclude the “Other.” Such concepts are not hard-wired. Biology is not destiny. Without such roles, we are free to choose. On the other hand, we cannot help for whom we have physical attraction. That is hard-wired into us; Biology is destiny. Choice is not an option. The idea that we choose whom we love is something imposed by the dominant patriarchy to oppress and exclude the “Other” by enforced heteronormativity.

Sen. Sessions: So, let me get this straight. I fully choose, despite my physiology, whether I am male or female. But I have no choice, because of my physiology, as to whether I am attracted to males or females. As a general proposition, my sex is what I choose, but with whom I have sex is beyond my control?

Judge Queen: Yes, that has been shown by groundbreaking articles such as one law review article by a professor at a Los Angeles law school. The article argues for a fundamental constitutionally-protected right of hairstyle, dress, make-up, tattoos, and piercings as an aspect of gender role preferences or projecting outward one’s sexual relations orientation. That is the post-structuralist, anti-essentialist insight provided by the legal academy whose conferences I attend. And, please, Senator your use of the word “straight” itself has revealed you to be freighted with preconceptions about your heteronormativity in opposition to the “Other,” which in your mind is somehow confused or mistaken, not “straight.” This is internal to you, and you are helpless, really, to overcome it.

Sen. Sessions: I’m just a poor Alabama country lawyer. I have no idea what you are talking about, and this is a half-hour I’d really like to get back at the end of my life. My time for questions mercifully is up. 

Senator Schumer (D-NY): Where are the cameras? Why aren’t they working? I don’t have any questions until the cameras are working.

Sen. Kyl (R-AZ): I want to ask you about a speech you made at UC Berkeley. You said, “With my rich experience as a, by definition, wise, Filipino-African-Hawaiian-Mexican-Cheyenne-Ukrainian-some drops of Armenian-a dash of German-and a hint of Italian-Transgendered-Lesbian-Unitarian-Human-American, I can make a heck of a lot better decisions than some boring Wonder-bread Christian heterosexual White guy with a wife and kids. Really, those breeders ought to be neutered and not be permitted to overpopulate the world with their irrational faith and their addiction to bourgeois notions of freedom and responsibility.” Judge, I am very disturbed by what that tells me about you. You seem to have a very violent mindset, and you focus excessively on tribal characteristics that bode ill for a job that requires you to apply the law impartially to all.

Judge Queen: You have to look at my record as a judge for seventeen years and my fealty to the law. That speech was one instance.

Sen. Kyl: You made the speech seven times, and it was reprinted in the “Filipino-African-Hawaiian-Mexican-Cheyenne-Ukrainian-some drops of Armenian-a dash of German-and a hint of Italian-Transgendered-Lesbian-Unitarian-Human-American Law Journal.”

Judge Queen: Well, they needed something else to publish besides a review of Pinay Power: Peminist Critical Theory: Theorizing the Filipina/American Experience. I just have found that making that kind of comparison and putting down Christian heterosexual White males always is a crowd pleaser at law school conferences, as it reflects the dominant theme of what gets published as scholarship. The White professors love it because, well, I don’t quite get why they love it. Maybe some guilt thing. And for the others, it appeals to their sense of grievance-based entitlement. Also to their racial, and whatever else, superiority. You have to look at my record as a judge for seventeen years and my fealty to the law.

Sen. Kyl: But those are very disturbing words.

Judge Queen: As I said, Senator, you have to look at my record as a judge for seventeen years and my fealty to the law. I can see how those words may sound harsh to some, but if you look at the context, I was just trying to inspire the students to achieve what I have achieved….

Sen. Schumer: Have they got those cameras fixed yet? No? Mr. Chairman, I find these conditions intolerable and can’t work with this. I’ll have to pass again.

Sen. Cornyn (R-TX): But the conference to which Sen. Kyle referred, where you first made the speech, and then six more times, was on “How To Get Rid of a Constitution Made by Dead White European Males and Create a Socialist Paradise with Rights to Government-Funded Everything, Including Abortion.” That suggests to us that you are not able to live up to your oath to support the Constitution.

Judge Queen: Senator, that’s a very typical conference or symposium put on by law schools and attended by professors and by lawyers from organizations affiliated with or supported by the American Bar Association. By the way, the ABA is a wonderful group and, as you know, judged me the most brilliant jurist ever, nominated by the most brilliant President ever. They were able to see those qualities despite the plodding and inelegant writing style that has been my hallmrk all my life. That is the highest rating they have ever given anyone and is certainly higher than the “barely qualified with reservations” ranking they typically give Republican nominees. So, you have to take that speech in the context it was given. It was far less controversial than most of the speeches there, which advocated speech restriction, property forfeiture, confinement, and even worse for those heterosexual White Christian males I mentioned. Compared to the usual law professors, students, and attorneys who attend these things, I was the conservative on that panel. You have to look at my record as a judge for seventeen years and my fealty to the law.

Sen. Cornyn: Do you stand by those words, then?

Judge Queen: As I believe I said before, you have to look at my record as a judge for seventeen years and my fealty to the law. I can see how someone might take those words to mean exactly what they say formally, as you do. But you are proving my point. As a heterosexual White Christian male, you are thinking linearly, as all of you do. So you think that words mean what they say. Ninety-nine percent of the population probably reads them the same as you do. But that is simply the result of the centuries-long oppression of such groups by the White patriarchy. Left to their own devices, by their inherent physiological characteristics, the collection of “Other” naturally thinks more holistically and comprehensively. We lawyers and law professors know that words do not mean what they say. We prove that everyday by confusing law students and by bringing successful law suits that challenge the generally-understood meaning of words in contracts, wills, statutes, and Constitutions. Such words are nothing until the judge in a lawsuit declares them to be so.

Sen. Cornyn: So, are you saying now that our thinking is determined by our physiological characteristics divided by race, gender, sexual proclivity, and religion?

Judge Queen: No. Of course not. It may seem to you as if I’m saying that, because those are the words I used. You need to look at the context of the words for their meaning. You just misunderstood them because your pituitary gland causes you to secrete a heterosexual White Christian male hormone. But, I can understand how someone like you might read them that way. Again, I was trying to inspire the students then, just as I am trying to inspire everyone now. You have to look at my record as a judge for seventeen years and my fealty to the law.

Sen. Cornyn: My pituitary gland?

Judge Queen: Look, Senator, I did not intend those words to mean what they say when read in their obvious meaning. That was the point of my speech. We need people to become judges who know what contracts, wills, statutes, and Constitutions really mean beyond the meaning of those words as commonly understood when written. If figuring out the meaning of laws were that easy, ordinary individuals who have not received years of training at college and law school would understand what the law requires. If that happened, where would we be?

Sen. Schumer: I have just been told there is a working television camera at a press conference outside the Capitol. I’m going to go over there and see if I can ask my questions from there. If you can’t hear them, Judge, don’t worry. They are very lengthy questions so I can get camera time, and your answers don’t really matter. I’m voting for you.

Sen. Graham (R-SC): Hello, Judge. I like you, and I’ll vote for you. But there are some things that really disturb me. Let me go back to your words that a wise person of your physiological characteristics will make better decisions than a White male.

Judge Queen: Only a heterosexual White Christian male. Again, you have to look at my record as a judge for seventeen years and my fealty to the law. You have to look at the context of the speech. I was only trying to inspire. That is how everyone there understood those words. Since you are voting on my nomination, from your context I will say the words were poorly chosen, and I do not think that any group can come to a better decision than any other. I certainly would have chosen my words differently if I had any inkling that the country would elect a President so radical he’d even consider nominating someone with a record of my speeches. But the speeches were made during the Bush administration, and for a long time it looked as if the Republicans would be running things until I was retired. Who knew?

Sen. Graham: Do you believe that, as the President said, that judges must exercise empathy when deciding cases?

Judge Queen: You have to look at my record as a judge for seventeen years and my fealty to the law. Judges decide according to the law. They do not make law. Congress makes law. The judges just interpret the law. Judges do not decide cases based on empathy. If the President meant what the obvious meaning of those words is, then I disagree with him. But, I don’t think that he meant what you think he did when he said those words. He is thoroughly post-modern and does not believe in Truths. He went to Harvard Law and taught at an American Bar Association law school, after all. Only as a part-timer, and he only taught equal protection law, which is what they commonly have professors they classify as “minorities” teach. But still. You have to look at the context of the words. He was only trying to inspire. Besides, there are no mistakes, only differing degrees of being right. And, as his supporters know, President Obama is not just President, he is the embodiment of all hope and salvation. Since he really can’t make a mistake, then, his words cannot mean what you think.

Sen. Graham: My time is up.

Sen. Franken (D-MN): Say, did you see that episode of L.A. Law, where they had the guy with multiple personalities who had committed murder, and he got off when some of his personalities fought with the other one and turned him in to the police? At least I think it was L.A. Law.

Judge Queen: Umh, no.

Sen. Franken: Me, neither. Say, did you watch the Ally McBeal episode where the guy has the affair with the judge? At least I think it was Ally McBeal.

Judge Queen: No.

Sen. Franken: Me, neither. Say, did you watch the Boston Legal episode where the guy adopted his gay lover so that his kids wouldn’t get his money? At least I think it was Boston Legal.

Judge Queen: No.

Sen. Franken: OK, then. What do think of Justice Scalia’s theory of orgasm?…No, wait. [Turning to an aide for help.] Oh, the word is originalism. Have you ever heard of that?

Judge Queen: Yes, I have. Justice Scalia takes the position that….

Sen. Franken: Whatever. I don’t want to hear about some old guy’s “positions.” That stuff’s boring. Have you heard of the case of New York Workers’ Compensation Board v. Alan Franken, Inc.?

Judge Queen: No.

Sen. Franken: Good. Just some problems with not paying workers’ comp on my employees. They were independent contractors, I swear. Thought we’d have some time for you to give me advice. I’m new here. I don’t know what I’m doing. They’re gonna cancel the show. I’m gonna die homeless and penniless and twenty pounds overweight. But really, I’m good enough, I’m smart enough, and doggone it, people like me….And that’s…okay.

Sen. Leahy: We’re going to take a break to escort Sen. Franken back to the changing room.

                                                                  *          *          *

Sen. Leahy: OK, thank God that’s over and done. Why couldn’t he be one of yours, Senator Coburn?

Sen. Coburn (R-OK): Even I might have advised abortion to his mother, Mr. Chairman. Judge Queen, do you believe, as you have stated, that words mean only what judges say they mean? That suggests that you believe that judges can make law and ignore the words of the Constitution.

Judge Queen: Senator, you have to look at my record as a judge for seventeen years and my fealty to the law. Judges do not make law. Congress makes law. Judges interpret laws. We cannot ignore words.

Sen. Coburn: But what does that mean, to “interpret laws”?

Judge Queen: It means that laws are interpreted. You have to look at the context of the words. For example, just because the Second Amendment protects “the right to keep and bear arms” does not mean that people have the right to have weapons to defend themselves. It just means they can keep their arms. I would look at that word as not just protecting arms. From the context I would say that the amendment also protects one’s right to legs, torso, head, liver, tonsils, spleen, and so on. Except perhaps for a certain racial group that has used up its historical allotment of enjoying this right. The wording of that amendment has nothing to do with weapons. It is really a prohibition against capital punishment and dismemberment. To take another example. Looking at the due process clauses in the Fifth and Fourteenth Amendments, they protect “liberty.” Well, not every liberty can be protected, however. For example, government could not exist without heavily taxing the fruits of your labor, and any judge who overturned a tax law or a regulatory law passed by Congress would be making law. At the same time, as everyone knows, the word liberty is related to libertinism. Contextually speaking, then, a judge would interpret liberty to protect anything that relates to libertinism. So laws that restrict sexual behavior, drug use, abortion, so-called vice laws are prohibited by the Constitution. Well, except anti-smoking laws that exclude weed. Those are OK. A judge overturning 100-year-old abortion laws in dozens of states is not making law. That’s for Congress to do. That judge is interpreting the law, which is what judges do. Judges do not make law. We interpret law and apply law to cases. It isn’t our view of what’s good policy that we are imposing. It just happens that the Constitution always commands what we judges and the law professors prefer as good policy. That only shows the wisdom of the well-selected judges. Referring to wise judges, please remember I am only trying to inspire students.

Sen. Coburn: One last question. You wrote an article that said that you thought the Constitution to be “hopelessly Eurocentric, a toxic condition that can only be mitigated by using foreign authorities to bring its terms more in line with the jurisprudence of courts in other countries.” You specifically cited favorably the forced abortion doctrine of the Communist Chinese to be applied to families who have a heterosexual White Christian male. You also lauded Canadian “hate speech” law to silence speech “offensive to any minority group.” Then you noted approvingly the Cuban and Venezuelan approaches to people’s rights to their own property. Other than in cases dealing with treaties or international contracts, do you believe that judges should use foreign law? Specifically, in applying the Constitution.

Judge Queen: No, I do not believe that judges should use foreign law made by the “Other,” that is, non-heterosexual White Christian males, when deciding cases under the American Constitution, a product of just such a heteronormative White patriarchy, if that use would be to “make law.” That is for Congress to do. Judges do not make law. You have to look a the context of what I am saying. You have to look at my record as a judge for seventeen years and my fealty to the law. Judges interpret the law. So, in that sense, judges should not “use” foreign law. But I have always said, and taken in context, the words in the article you mention can be read that way, judges can use foreign law to help them understand American law. They only decide the case based on American law, but they use foreign law to see whether their understanding of the words and of American law is consistent with that of the “Other.” The judge’s use of foreign law then is just “thinking aloud.” It’s the same as when the judge puts in references to law review articles, books on Oprah’s list of fiction, recipes from Martha Stewart, or David Letterman jokes. None of them have any connection to the reality lived in by most people. But it gets the judge noticed by those he or she quotes or cites. Maybe some invitation for a trip, conference, or appearance will come of it. But a judge must never use foreign law to limit the American Constitution’s protection of abortion in the various ways that all but six of the other countries in the world do. That would be making law, and doing so on the basis of foreign law. And judges are very careful not to make law. Congress does that. Judges interpret the law and apply law to the facts.

Sen. Kohl (D-WI): Judge Queen, in reviewing your judicial temperament, you have received many glowing reports. But there are also a lot of complaints from lawyers about what they perceive as your short temper and your bullying.

Judge Queen: Senator, we have an “active bench.” We ask lots of questions.

Sen. Kohl: But your colleagues don’t receive such reports.

Judge Queen: Well, then, those complaints come from the heterosexual White Christian male lawyers. They cannot handle having their superiority challenged by the “Other,” especially a Filipino-African-Hawaiian-Mexican-Cheyenne-Ukrainian-some drops of Armenian-a dash of German-and a hint of Italian-Transgendered-Lesbian-Unitarian-Human-American judge. They may perceive that to be bullying, but if you look at the context, you will see that the opposing lawyers in those cases probably came from some historically-disadvantaged and now-protected minority group. I was trying to inspire those lawyers by my alleged bullying of their opponents. So, again, these are relative concepts. What may have been bullying to one side’s lawyers may well have been inspiring to the other side’s. You have to look at my record as a judge for seventeen years and my fealty to the law.

Sen. Kohl: Thank you. That makes sense to me….

Sen. Leahy: Judge Green, you have said many words of wisdom and have shown yourself to be a true representative of the state of the legal profession in the United States today. Have you any last message for this committee?

Judge Queen: My name is Queen. But thank you, Senator. I would just ask the committee not to consider speeches I have given or books and articles I have written during my life. I ask that even if those efforts appear to show a coherent philosophy based on the generally-understood meaning of the words I used. Rather, I would ask the committee to look at my record as a judge for seventeen years and my fealty to the law; at the context not the content of anything I’ve said or written; at my goal to inspire others; and at the fact that I have said numerous times before this committee that, unlike what appears to you to be the result of my decisions, judges do not make law. We only decide cases and faithfully apply the law Congress makes. Swear.

Senator Tom Coburn, M.D. (R-OK) questions Judge Sotomayor:

At the beginning, Senator Coburn focuses on the issue of abortion and the states’ power to legislate in this field. After an initial confident statement that the law protecting a woman’s choice to abort is settled by Planned Parenthood v. Casey’s affirmance of the central holding of Roe v. Wade, Judge Sotomayor’s answers quickly become evasive and non-responsive. I do not mean by that her careful tone. While at times during the hearings she has seemed inarticulate, I do not believe she is. Rather, the problem is that she is being so careful as not to make some misstep that could derail her nomination. That said, she refuses to answer questions about matters related to abortion regulation because those might come before her. There is no mention, however, of any particular case, nor of even of the existence of a particular statute. Indeed, the answer to the question whether the law should be able to take into account changes in technology in affecting the point of viability was at least implicitly recognized in Planned Parenthood when the Court abandoned Roe’s strict trimester framework. It was also recognized in other cases by Justices O’Connor and Kennedy (as two of the three authors of the main opinion in Planned Parenthood). Senator Coburn obviously knows that, while Judge Sotomayor seemed baffled.

As to the question about whether a woman at 38 weeks pregnancy could demand an abortion if at that stage an indicator for spina bifida was discovered on the fetus, Sotomayor dodges the question by saying she can’t answer because she doesn’t have a specific state law in front of her. Of course, if she had, she couldn’t answer the question because the law might be challenged. But her answer doesn’t really depend on state law.

If the woman says that the having the child would cause her emotional trauma, and her doctor agrees, she can have the abortion. Contrary to common understanding, the Supreme Court has consistently held that a woman must ber permitted to choose an abortion even in the latter stages of pregnancy if her life or health are endangered and the abortion is necessary. As to whether there is this endangerment or whether the abortion is necessary, the Court has traditionally insisted that the issue is one for the woman and the doctor, not for the state. Only in the “partial birth abortion” case, Gonzales v. Carhart, did the Court, over vigorous criticism by the dissent that the Court was changing long-established precedent, uphold an abortion limitation that did not have a life or health exception. But even there, the statute dealt only with the availability of one particular abortion procedure, not with abortion generally. Moreover, the suit was a “facial attack” on the statute as written, not an “as applied attack,” and the Court, particularly recently, has signalled an aversion to facial attacks on laws.

Effectively, then, women have a right to terminate their pregnancy up to birth if life or health are at risk. Given current technology, it is extremely unlikely (if not non-existent) that the only thing to save a woman’s life is to have an abortion. ”Health,” the Court has said includes mental/emotional as well as physical well-being. It is protection of health, then, that is said to be served by third-trimester abortions of the type Senator Coburn was addressing and Judge Sotomayor was dodging.

As an aside, note that Judge Sotomayor correctly notes that Planned Parenthood defined the woman’s right as one to terminate the pregnancy, not to terminate the baby. So when Barack Obama opposes a statute (the type of which even Barbara Boxer did not oppose at the federal level) that would require doctors to care for babies who survive an abortion, he is far more radical than what Roe and Planned Parenthood, radical as they are, demand.

Another interesting exchange is over the Second Circuit’s refusal to recognize a right to bear arms that is protected by incorporating the Second Amendment (which does recognize such a right, but only against the federal government) into the Fourteenth Amendment (whose “liberty” protection under the due process clause applies against the states). Under that incorporation theory, the Court has applied numerous Bill of Rights guarantees against the states, for example, the First Amendment’s speech, press, assembly, and religion protections. The Court has even found unenumerated liberty provisions, such as the “right of privacy.”

Judge Sotomayor does a credible job defending her panel’s ruling in the Maloney case that refused to recognize such a protection against state regulation of arms. She relies on the existence of 19th century precedent and paints herself as someone strictly adhering to established law through Supreme Court precedent. But the precedents on which she relies do not squarely address the issue, as I have pointed out before in other posts and as the Ninth Circuit pointed out in the Nordyke case. Indeed, Justice Scalia in his Heller opinion (which recognized the individual right to bear arms as protected under the Second Amendment), encouraged litigants to raise that issue in a future case.

Senator Coburn then hits the ball out of the park at about 15:00 when he discusses the debates on the Fourteenth Amendment, which show that a principal concern that motivated the backers of that amendment was the practice of the post-Civil War Southern state governments to disarm their Black populations. The Fourteenth Amendment was, as I have noted in previous posts, directly (not through incorporation of Bill of Rights provisions) intended to protect private gun ownership for self-defense, albeit through the privileges or immunities clause, not the due process clause.

At 15:45, he asks another terrific questions, how it came to be that a clearly expressed right such as the right to bear arms has not been applied to the states, while a right that is not at all mentioned in its fullness, the right of privacy, has been so applied. Judge Sotomayorgives a decently evasive response from her perspective. It’s the repetitive “judges don’t make law, and the public doesn’t realize that” response. But another response is that, unlike large groups of Americans, the legal elite simply does not view gun possession with the same awe and respect as abortion.

At about 24:00, Coburn impressively launches into one more line of questions, the use of foreign law by American judges in deciding constitutional cases. Justices Scalia and Thomas have been particularly critical of that tendency, as it is undemocratic, unfounded in American constitutional theory, and politically result-oriented. For example, Justices Breyer, Ginsburg, Souter, O’Connor and Kennedy, who are or have been particularly enamored of this approach, never seem to get around to it when examining the vastly more restrictive abortion rights recognized in other countries. Or the lack of an exclusionary rule for illegally obtained police evidence. Or the easier defamation recoveries. Or the greater toleration for government assistance to religion, all of which go against the freedom recognized by the Court as contained in our Constitution. The Court only uses this approach when it is politically expedient to allow the judges to push the Constitution in a direction that they like.

After claiming that she agrees with Justices Scalia and Thomas, Judge Sotomayor is confronted by Senator Coburn with the text of a speech she gave in which she ridiculed the notion that judges can avert their eyes from foreign law in deciding constitutional cases. She staunchly claims that there is no conflict between her speech and her confirmation statements. Truly and pathetically disingenuous. She is reduced to saying that it depends on how one uses the word “use,” as in judges should or should not use foreign law. She claims that judges just refer to foreign law as an academic exercise to enlighten themselves about an issue, but they do not use foreign law as precedent. This is patently absurd. As Justice  Scalia pointed out in his famous debate with Justice Breyer on this topic at American University a few years ago, if judges are just educating themselves and speculating for fun, they should not do so in official court opinions. Such dictum is inevitably confusing. Especially when such speculations are a sizable component of the opinion, it is difficult to escape the conclusion that the judge is using foreign law as precedent.

UPDATE: Ed Whelan at NRO’s Bench Memos has further thoughts about Judge Sotomayor’s “obfuscations” about the use of foreign law to decide constitutional cases. I think that he is being charitable about Sotomayor’s obvious contradictions and her transparent attempt to distance herself from the legal elite’s transnationalism that she obviously embraces.

This is the article by Stuart Taylor in the National Journal that Senator Jeff Sessions mentioned in his questioning of Judge Sotomayor over the Ricci case. Taylor is a moderate liberal and favors the Sotomayor nomination. He makes a wonderful and convincing argument that the Sotomayor panel’s summary per curiam affirmance of the district court opinion is indefensible:

“The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the ‘disparate-impact’ provisions of federal civil-rights law.

“In fact, neither Sotomayor nor any other judge has ever found that the exams — one for would-be fire lieutenants, one for would-be captains — were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

“Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven’s discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit — regardless of whether they could win it.”

The result, had the Sotomayor view prevailed?

“The unmistakable logic of Sotomayor’s position would encourage employers to discriminate against high-scoring groups based on race — no matter how valid and lawful the qualifying test — in any case in which disproportionate numbers of protected minorities have low scores, as is the norm.

“Such logic would convert disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.”

The racial politics of the case, which also permeates the District Court’s opinion that the Sotomayor panel accepts, is particularly loathsome in light of the facts that Taylor outlines and some of which have not been accurately reported in the press. One such fact is that Connecticut and New Haven require job-related objective testing methods rather than more subjective methods often used to facilitate nepotism and improper discrimination. Pay particular attention to the efforts made to justify the test as a valid and racially-neutral measure of job performance, including the participation of members of racial minority groups in the creation and review of the test.

Justice Ginsburg in her dissent in the Supreme Court version of Ricci faults the city for relying on a written objective test for 60% of the evaluation rather than more on oral exams that, she claims, have produced fewer racial disparities. While oral exams have their purposes, and sometimes can be very effective testing devices, they have serious problems if one is trying to avoid race discrimination. The less racially disparate results that Justice Ginsburg trumpets precisely make that point by raising the suspicion that those results are due to racial considerations and not how well the applicant performed.

The article is well-written and undestandable. Taylor predicted that no Justice of the Supreme Court would endorse the obviously quota-friendly reasoning of the lower courts. He was right. None did, although Justice Ginsburg’s dissent made much noise about how the city might have had a basis for believing they might have been subject to a disparate (discriminatory) impact law suit if they failed to throw out the test. But even Ginsburg did not go so far as to endorse the view that the city could, without more, just throw out the result whenever a test did not achieve the racial mix the city desired.

Senator Jefferson Beauregard Sessions (R-AL) [now that’s a proud Southern name!] questions Judge Sotomayor about several of her speeches. Sessions is a former U.S. Attorney for Alabama and the state’s former attorney general. He was nominated by Ronald Reagan to a federal judgeship in 1986, but the Senate Judiciary Committee refused to vote out the nomination and it died. Ten years later, he was elected to the Senate and joined the Judiciary Committee. Those must have been some awkward moments.

The first of Sotomayor’s speeches discussed is where she states that appellate courts make policy. She does a fair job of responding to the criticism, noting that she was discussing the difference in the jobs of district (trial) judges and appeallate judges. If one believes that she was trying to say that in her speech, she has a point about the creative role appellate courts play in the sphere of judicial “law creation.” Sessions is not convinced and asserts his belief that she was advocating an activist, policy-making role for the courts.

But when Sessions begins to question her about the notorious “wise Latina” speech, she is totally disingenuous. She tries to present the speech as a testament to how judges need to recognize how their race might have affected their life experiences and try to set them aside. Sessions is having none of it and accuses her, correctly, of having said exactly the opposite in her speech. Her response is evasive and rambling, at best. The same happens when he confronts her with her statement that life experience causes judges to select which facts they consider.

Ultimately, she falls back, as always, on her record of 17 years, to show her impartiality.

Beginning around 18:00, they discuss the Ricci case (the New Haven firefighters case). Sessions does a good job destroying the canard that precedent within the Second Circuit required the panel to vote against the firefighters. Moreoever, when en banc review was requested, Sotomayor provided the crucial vote to deny a hearing that could have addressed the substantive matter of whatever such precedent did or did not in fact hold.

In a later round of questions by Senator Kyl, Judge Sotomayor cannot point to the precedent that she frequently referred to as binding her panel in the Ricci case.

Texas Senator John Cornyn questions Judge Sotomayor. Cornyn is a former justice of the Texas Supreme Court. He begins by bemoaning the lack of civility of past hearings and, with broad allusion to the failed nomination of Republican Miguel Estrada to the Court of Appeals and the attempted derailing of the nomination of John Roberts to the Supreme Court, prior filibusters.

What is interesting here is again her staunch defense of the notion that judges do not “make law” or “change law.” At about 13:20, she denies a role for judicial lawmaking, limiting the role of judges to applying the law to changing facts. Only facts change as society changes, unless the legislature changes the law. The most she commits to in so many words is that judges change interpretations of their own precedents. In short, she limits judges’ roles in true formalistic fashion to common-law tinkering with their own cases, which she says may have the apperance of law-making, but is not the real thing.

Most times, her answers, while rambling, nevertheless make sense. But they do so primarily because she is abandoning her pre-nomination speeches. At other times, she is evasively filibustering, At around 17:00, after being asked about her “wise Latina” speech, in which she looked to physiological differences between the sexes or among the races as a possible explanation for different modes of approaching and resolving an issue, she responds by talking about jobs that require different strength or eyesight, which are due to physiological factors. When challenged, she resorts to her old statements about the relevance of life experience.

I do agree with her when she then says that physiological differences should be explored. Such differences may well account for many mental and intellectual differences among individuals, and there is no reason to believe that such characteristics would not be represented in different degrees among different racial/ethnic groups or between the sexes. However, even if that is true, should that be something that should be flaunted in a judge, or something that the judge should overcome in applying the law. Senator Cornyn, too, confesses that he struggles to reconcile her remarks in her speech with her ardently professed “fealty to the law.”

It seems that almost every question to her is met with some version of a reference to ”my record of decisions that show fealty to the law.”

At 24:00 comes the best part of the questioning, here dealing with the Ricci case (the New Haven firefighters/affirmative action case). Sotomayor’s panel had tried to bury the case through a summary order that basically affirmed the district court order. Only by happenstance did Judge Jose Cabranes (another Democratic Puerto Rican judge, appointed by President Clinton, but a much more mainstream judge than Judge Sotomayor) read about the case in the newspapers and bring it to the attention of the en banc circuit court. Cabranes noted that there was no Supreme Court or Second Circuit Court precedent on point, which undermines the basis for the panel’s attempt to bury the decision.

She does have a point that litigants can petition the whole circuit court for en banc review or go to the Supreme Court for a writ of certiorari to get review, so that the claim of “burying” the case is a bit dodgy. On the other hand, this post from Bench Memos suggests that parties in the Second Circuit rarely bother to file for an en banc hearing because such petitions are granted exceedingly rarely, unless the circuit is already aware of the case. And it wasn’t aware because the opinion was an unpublished per curiam until Judge Cabranes read about it.

Her defense of the sketchy opinion her panel produced is dubious. She relied on the opinion of the district court, which she considered to be thorough. That thoroughness, she averred, allowed the panel to avoid citing precedent and to reach a summary approval. But Cabranes was right that there was no such on-point precedent, which makes the panel’s summary affirmance suspicious. In a later round of questions by Senator Kyl, Judge Sotomayor cannot point to the precedent that she frequently referred to as binding her panel in the Ricci case. Moreover, the District Court concluded that a jury might well find that the city had deprived the firefighters of their rights. At the very least, then, the case warranted more careful analysis from Sotomayor’s panel.

Senator John Kyl of Arizona questions Judge Sotomayor. Some interesting exchanges. At the beginning they discuss the Maloney case, the nunchuk decision in which Sotomayor’s panel rejected application of the Second Amendment against the states through the Fourteenth Amendment. I posted on that issue here. The Maloney discussion is less about the substantive issue and more about the more dryly technical issue of whether she would recuse herself from a Supreme Court decision on the constitutionality of state gun ban laws other than in a review of Maloney. She properly declined to commit herself, as her recusal in a review directly of Maloney would be expected. But such a duty is less clear if Maloney itself is not the vehicle for review, though the same issues are raised.

Beginning about 8:30, Kyl addresses Obama’s claim that he is looking for judges who have “empathy” to take care of those 5% of cases where the law will not get the judge all the way. Sotomayor flatly rejects Obama’s characterization of a proper description of what she does, or of what judges do in general. She rejects the idea that judges use feelings or anything other than law to decide cases. This is wonderful theater. Either she is flat-out lying, or even she is (and, in the future can be held out as) someone who disparages that theory of judging and such a characteristic as a proper quality of the judge. As I analyzed before, I believe that empathy is a good quality in a judge, but not empathy in the race-centered manner that she has averred in her speeches. And certainly not as Obama described empathy. His version is more like sympathy for litigants of certain “proper” backgrounds.

Beginning around 14:30, Kyl dissects Sotomayor’s speeches. He notes that she has made the same speech more than once. Reading from her speech, he points out that, contrary to her protestations that she was merely trying to inspire students with her poorly-chosen words, those words were carefully chosen, as they represented the speech’s very purpose. He proves that, not only did she advance the proposition that her background and experiences will make a difference in her view of the law (no one, by the way, disagrees with that), but that she believes that to be something to be celebrated and fostered in the decision-making itself. One of the academics she quotes pronounces judging of law to be merely an exercise of power, in typical critical feminist theory dogma.

Faced with this overwhelming evidence of her “post-modern” attitudes towards judging, she—disavows that evidence. Once more, she invokes her fealty to the law. In her defense, one often taylors one’s remarks to one’s audience, as she clearly does with the committee, and as she likely did with her speeches to academic audiences who love to hear this post-modern, identity-group inflected analysis.

Beginning about 27:30, Kyl, who is really quite masterful in his questions and well-versed in the issues (though he sometimes confuses “imply” and “infer”), gets to the nub of the problem. Judging by her speeches, Sotomayor would embrace identity-group differences and let them come out in the decision-making. Kyl wants a judge to understand how his or her life experiences may have shaped attitudes, but then seek to distance himself or herself from those when applying the law. One might describe this as a sort of race (or whatever)-conscious affirmative action to mitigate those experiences as they relate to the interpretation of binding law to the parties.

At the end, she still disingenuously seeks to defend her remarks and claim that they were understood. She then flatly contradicts her “wise Latina” remarks, by claiming that, to paraphrase this, no group has a monopoly on wisdom in judging. Thus, she continues her confirmation evolution from Democratic Party identity-group focus as the core defining characteristic of human action to a Republican Party focus on the individual as a free actor.

What I have seen of the Sotomayor hearings has been fascinating. The Republicans are playing this perfectly. Hit her over and over to expose the weaknesses of her position and the political agenda of the President. But vote for her. In overwhelming numbers. Senator Lindsay Graham has often been a disappointment to conservatives. He’s the junior partner to the McCain program of “reaching across the aisle,” a move that inevitably means a Republican surrender to a Democratic position, not bringing Democrats to the Republicans. But he is just masterful in his dissection of Sotomayor’s views, intellect, and temperament in this questioning. Here is the video:

Graham is doing three things:

He is making Sotomayor look ignorant. In her defense, these sessions often take on the cast of an oral examination, with the patient and pedantic Senators testing the novice would-be scholar. It’s somewhat demeaning. But still, she at several points just does not come off well, as I shall explain. On the other hand, she is able to sound like the Dr. Jekyll to her Mr. (or Ms.) Hyde reputation when she is on the bench.

He, like some of the other Republicans, is also making her look inconsistent by forcing her to backtrack from remarks and jettison previously-articulated positions. This makes her look weak and/or like a hypocrite, at best, or like a prevaricator, at worst.

He is laying down tests and markers that he will be able to use against a future more dogmatic Obama nominee and for a future Republican nominee.

When asked what Legal Realism means, she replies, with a wrinkle of the nose to accentuate the pragmatism, “It means that you are guided in reaching decisions in law by the realism of the situation.” Then she looks at Graham expectantly as a student who wonders if her b.s. answer was enough for the professor. Legal Realism is a skeptical challenge to the notion that law is a formal body of cohesive rules that can be applied impartially and thus provide determinate answers to particular controversies. Judge Jerome Frank was one of the most acerbic of the Legal Realists and in Courts on Trial hyperbolically made his point by proclaiming that a decision of a judge is more influenced and explained by what he had for breakfast than by a formal rule. It is, in that sense, descriptive of a process. It is not a prescriptive approach, as Sotomayor painted it. To whatever extent some of the more enthusiastic followers of Legal Realism gave prescriptive meaning to the idea, it was to draw on extralegal considerations to supplement the formal commands of the law when resolving specific cases. That would usually be in furtherance of balancing competing social interests. As becomes clear here, Legal Realists minimized the distinction between law and politics, judging and power, reason and will, courts and legislatures. In other words, activist judges of Sotomayor’s type. Some of the more toxic recent offshoots of Legal Realism are feminist legal theory and critical [insert identity group characteristic here] theory. Proponents of Legal Realism would be dismayed that their theory has been reduced to nothing more than making legal decisions based on “the realism” of the situation. Under that view, everyone is a Legal Realist, because both law and facts as well as, to be sure, the actors’ life experiences always guide decisions in particular cases.

Worse, she then proceeds to reject that label for herself. Yet all her speeches demonstrate that she is a devotee of the toxic offshoots of Legal Realism, critical legal theory. She similarly rejects the liberals’ favorite strawman of the “living Constitution.” That, too, is a crucial concept as a jurisprudential foundation for judicial activism directed at achieving “desirable” social goals without the constraints of the democratic process.

As to the aforementioned markers, he explores Sotomayor’s noted bullying and supposed lack of temperament. If such accusations are brought against a future Republican nominee, it will be helpful to have this on the record. Her response that she is part of an “active bench” circuit falls flat. As Graham notes, the other judges on the circuit don’t get those remarks. Moreover, one can be “active” without being bullying. Scalia certainly is active, but he leavens his comments with humor. Stevens is active, but still professional.

From about 14:30 to about 18:00, he addresses the “wise Latina” “inspirational remark” (her characterization). As an aside, this was not just an isolated inspirational off-the-cuff remark, but a central theme in speeches and writings on numerous occasions over several years. But, leaving that aside, Graham agrees with Sotomayor that such remarks should not be looked in isolation. He notes that persons deserve a second chance. Presumably also Republican nominees that make remarks that, in retrospect and from a different venue, look unwise. 

Beginning about 19:30 until about 22:30, he gets into the issues of war and military law. This is an issue of particular concern to Republican Senators, and to Graham (an ex-JAG attorney) in particular. He is particularly getting at the point that detaining enemy combatants in war does not require them to be released at any time. They can be held as long as they present a potential threat, once it is determined that they in fact are enemy combatants. She is obviously unprepared to answer questions on that issue, one that is increasingly important as an indicator of her position on executive power and of how activist she will be on issues of executive war powers.

He has her furiously evading questions about positions taken by the Puerto Rican Legal Defense Fund while she was on the board, including the ridiculous position that denying taxpayer funding for abortions is a form of slavery. I wonder how her claim that she had no idea what was going on in the filings year after year comports with her duty of investigation and to be informed as a board member.

Her approach has infuriated many on the Left because she has been unwilling or unable to defend their pet theories and causes.

With my intense teaching schedule in July and August in two programs, I have not been able to post as much on the Sotomayor kabuki in the Senate as I would have liked. I have been watching videos, reviewing transcripts, and reading commentary to get a good sense of what is going on. So, I hope to provide some posts on what has been occurring.

I call the hearings “kabuki” because they follow a highly stylized process that seems odd and even boring to those not aware of the background or able to understand the nuances. The participants follow a routinized script that calls for them figuratively to dance and act in exaggerated displays that mimic a real inquiry.

Since the Bork hearings in 1987, the goal for the nominee has been to say as little as possible in however many words that takes. Robert Bork rejected the advice of the minders provided him by the Reagan administration and thought that he could engage in an honest academic exchange of ideas with the likes of Joe Biden and Ted Kennedy. Kennedy asked questions about Bork’s publications prepared by his staff. I remember hearing them and concluding that, as displayed by the manner and tone in which they were asked, Kennedy clearly did not understand what he was asking. So the answers Bork gave didn’t matter. Kennedy merely used the questions as overtures for predetermined attacks. The hero of Chappaquiddick even proceeded to lecture Bork on morally right behavior. Big mistake by Bork. As Senator Fred Thompson so aptly puts it, Bork was punished for “committing candor.” Never again would a nominee be so reckless.

Thereafter, the game plan became clear: Best to let Senators drone on, but if forced to answer with the heat on, filibuster. Run away from your record, if the President is so brash as to nominate someone with a record. When asked to comment on previously decided cases, call them old established precedent but venture no opinion except perhaps on a matter where there is no dispute on how to stand. It can never hurt to denounce Plessy v. Ferguson or to praise Brown v. Bd. of Education. As to new issues, parry by claiming that you might have to rule on the matter and do not want to commit yourself. Do this, even if there is no actual litigation being addressed in the question. Alternatively, and in a somewhat contradictory position, emphasize the complexity of the matter and decline to give an answer because there are not “concrete facts.” As yet another alternative, claim you have not thought about the matter, even if the matter is something as hotly debated as the question of the rights of unborn children, and offer to get back to the questioner (say, in 2015).

The modus operandi of Senators from the President’s party has been to coddle the nominee and present him or her as the most qualified individual in the U.S. to take that Supreme Court seat and one of the greatest jurists since Solomon. Every criticism of the nominee must be blunted by a thirty-minute Senatorial soliloquy that lionizes even bad decisions by the judge and then, effectively, asks the nominee to answer, in the ten seconds remaining, whether he or she agrees that such criticisms have been unfair and, in the case of the appropriate nominee, due to racism/sexism/politics of personal destruction.

The role of the opposing party’s Senators has been, in the manner of the joke about realtors, to turn every molehill into a mountain. No matter how trivial the matter, feign horror at the insensitivity of the nominee. No matter how insignificant the intellectual disagreement as a practical matter, invoke the danger to the Constitution that the nominee’s views present. The problem with such grandstanding is, of course, that it blunts the effect when there really are problems with the nominee’s views, as in the present case.

It has to be noted that, while both parties are guilty of attack politics, the Democrats have been far nastier, and far more effective, in their scorched earth policy of personal destruction of Republican nominees than vice versa. All offered with a smile, of course, a tactic for which Joe Biden was notorious. Consider how thoroughly the Democratic Senate engaged in the distortions of the record and personality of Robert Bork. It was Democratic operatives in the press and advocacy groups who searched Bork’s video rental records to see whether they could find damaging material, though they likely believed that there should be no laws against the porn that they were unsuccessful in finding. A new concept even entered the political discourse: “Borking,” in both noun and verb form, to describe the unfounded and thorough smearing of an intellectually powerful conservative judge.

Few people remember that, the year before the Democrats’ personal destruction of Robert Bork, a similar effort had been undertaken to defeat the nomination of Justice William Rehnquist to be Chief Justice on Warren Burger’s retirement. Rehnquist’s record was subjected to the usual distortions and he to the usual attacks. This from the same Democrats who lauded Rehnquist when John Roberts was nominated to succeed him and who doubted that Roberts would be similarly judicious. Rehnquist was confirmed 65-33. That was the most negative votes for a Chief Justice since Herbert Hoover’s nomination of Charles Evans Hughes in 1930, an event that, in a preview of the Bork defeat, had been followed in short order by the Democrats’ defeat of the nomination of Judge John Parker to the Court.

Then there was the Democrats’ “high tech lynching” of Clarence Thomas that also produced a hearing full of the politics of personal destruction. A Democratic Party-allied advocacy group crowed that they would “bork” Judge Thomas. Ted Kennedy and the Judiciary Committee castigated Thomas for alleged (and unsubstantiated) sexual innuendos towards a former employee, Anita Hill, who, despite her professed humiliation, had followed Thomas from one position in the government to another over several years, and who had sought a letter of recommendation from him. He was confirmed 52-48, the narrowest vote of approval in a century.

Even the eminently qualified and personally rather unassuming John Roberts (whose family was derided in the media for their plain clothing), underwent the Democratic pummeling of his character. Eventually he was confirmed, 78-22. Those opponents voted as they did, despite their acknowledgement that Roberts the lawyer was qualified. As a certain then-Senator from Illinois expressed it,

“There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view.

“It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95% of the cases that come before the federal court — adherence to precedence [sic], a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system.” But that wasn’t enough. It’s the empathy thing that, according to this sanctimonious view, distinguishes conservatives (who lack it) from liberals (who have it).

Then came Justice Alito. He, too, was eminently qualified and not a particularly controversial personality. He was given the same treatment, to the point that his wife left the Senagte chamber in tears at the destruction of his character by the Democrats. He was confirmed by the relatively narrow vote of 58-42, the mirror image of Judge Bork’s losing vote. Democrats even tried, through the offices of Senatorial giant John Kerry, to launch a filibuster.

The only exceptions to this pattern were the confirmations of Anthony Kennedy (97-0) after the Bork debacle and the ensuing failure to place Judge Douglas Ginsburg (no relation to Ruth) on the Court, and of David Souter (90-9).

Contrast that with the votes for Democratic nominees Ruth Bader Ginsburg and Stephen Breyer, who faced a Republican Senate. As Justice Ginsburg acknowledged in a recent New York Times interview, those hearings were characterized by a remarkable civility. Orrin Hatch, the chairman of the Judiciary Committee, insisted on civility and on the President’s right to have his nominee confirmed, barring some shocking discovery of moral or intellectual unfitness. Their votes for confirmation were 96-3 for Ginsburg, despite her very conspicuous and controversial work for left-wing feminist groups, and 87-9 for Breyer.

Judge Sotomayor has learned her role well. She has managed to avoid answering questions about the rights of unborn children, claiming not to have thought about that. She disavowed the obvious message of her “wise Latina” comment every which way she could. She rejected the obvious import of her writings about the application of foreign law. She repudiated the Obama empathy test, even though she fits that to a tee and was chosen for that very reason. She made such ludicrous comments about the law of the firefighters case that she was unable to cite an on-point precedent for her panel’s decision. Her discussion of Legal Realism was nothing short of pathetic, as I will show in another post, so she could downplay the academic heresy that has profoundly shaped her own ideological view of law. And still, she has lost public support in her quest from when she started.

The real interesting point to come of this is, as others also have remarked, that Judge Sotomayor has demonstrated that even with a relatively popular President and 60 Democrats in the Senate, her ideology grounded in left-wing academic fantasy-spinning and racial identity grievance politics doesn’t sell. That ought to give conservatives some hope and confidence.

With the Sotomayor confirmation hearings in full swing, I return to what I had written soon upon her nomination. The Republicans have no hope of stopping her confirmation, barring some complete meltdown, such as the nominee dressing for the hearing in an old Al Franken costume. Besides, as bad as Sotomayor sounds and, in many ways, is, things could have been worse. Judging by her past, and, yes, despite her race-pandering comments at race-pandering conferences and in race-pandering publications, I do not see that she is as ideologically knee-jerk left as some of the other possibilities. Diane Wood comes to mind. Moreover, she is not a formidable force for the left, not the least due to her lack of flair for writing. Scalia she isn’t. (I cannot believe I’m using Mother Jones as a source.) Obama was being somewhat cautious not to ignite a firestorm of controversy, while still furthering his political objective of racial politics.

As I’ve told my students for quite a number of years now, it was likely that a President would appoint a justice of Hispanic ancestry. As explained below and in previous posts, had luck been with him and the Senate Democrats less racist, W would have appointed such a justice. I also think that there soon will be an Asian justice. I believe that Obama is setting up Yale Law School Dean Harold Koh for such an option.

Republicans can use this time not to stop Sotomayor but to paint Obama as a race-mongering, affirmative action-pushing, out-of-touch elitist who views the roles of the judges to be Platonic guardians and to enact social policy he likes. Sotomayor’s repeated speeches and her unfortunate votes in the affirmative action New Haven firefighters case and other cases work right into that. She has given Republicans plenty of ammunition, if they know how to use it. Opening statements today suggest that they do. This approach will create a narrative about Sotomayor to some extent and, more permanently useful, also about Obama. His future nominations, of which there likely will be some, will be more ideologically dogmatic, unless the Republicans retake the Senate. That, unfortunately, is not likely before 2014 at the earliest. Obama in the future will be less concerned about nominations distracting from his ideological goals of health care and energy regulations and general government control over the economy. Those goals will have been substantially reached or, if not, be unlikely at that point. It behooves Republicans not to be seen as reflexively obstructionist, and their determined opposition in the future will be more credible if they have not stood in the President’s way now. So, fire away at Sotomayor, and do so with vigor, but, in the final vote, do not vote against her. Keep that powder dry.

That said, I am glad that Senators Graham and Sessions brought up the shabby treatment accorded George W. Bush’s 2001 nominee to the D.C. Circuit, Miguel Estrada. As I posted last month, memos have shown that the Estrada nomination was done in by Democrat filibuster when the cloture vote failed seven times, because Estrada was Latino. Democrats feared that W was going to elevate Estrada from this most prestigious of circuit courts to the Supreme Court (likely correct), and they did not want a Republican to appoint the first Hispanic justice. So I was pleased to note that Senator Lindsey Graham told Sotomayor that Republicans would not have picked her; they would have picked Estrada.

Senator Patrick “Leaky” Leahy is a repellant character who used the opportunity today to say that this nomination of a Hispanic was a first. He also claimed the Democrats gave Estrada a hearing. Ed Whelan at NRO’s Bench Memos sets the record straight with a time outline of the Estrada proceedings. The Democrats’ Latino pressure groups, such as the National Hispanic Bar Association, have vowed to make sure that Republicans don’t act out of racism and anti-Hispanic prejudice. That is code language for don’t criticize her. Where were these defenders of Latinos when Estrada (an immigrant from Honduras raised by his mother) was falling victim to Democrat racism? The memos were made public, after all. As expected, these professional grievance mongers were nowhere to be found at the time. The goal is not to protect Hispanic nominees from actual Democratic Party racism, but to protect Democratic Party Hispanics from conjectured Republican Party racism.

Professor Randy Barnett urges Senators to focus questions on Sotomayor’s broad attitudes towards constitutional clauses to gauge her positions. I do not wholeheartedly agree with Barnett’s views of criticism of judicial activism (though that term is frequently misunderstood). I do, however, wholeheartedly agree with his point about the noxious influence of Legal Realism on liberal faculty and judges.

Is Sotomayor’s opening speech statement that her judicial philosophy is “fidelity to the law” (emphasized in her tone) mere confirmation conversion? Compared to her earlier speeches, it would seem so. Others say that she will be faithful to the law, but she will sift through the facts to pick those that a wise Latina woman would consider important and apply the law, faithfully, to those.

This is a good article about the voting trends of the Supreme Court Justices this past term and the role of swing voter Anthony Kennedy. The writer also makes a good case for the political skills of Chief Justice Roberts in setting the stage for future bigger doctrinal shifts. Some comments:

1.  I find the observation that Alito is becoming the “most conservative” justice puzzling, especially because the declared reason is that he supposedly “has found room to the right” of the Chief Justice. That reason implies that the Chief has been the most conservative member of the Court. Allowing the use of the malleable term “conservative” as a short-hand designation for a certain view of the Court’s role and of the Constitution, I would have thought that Scalia and Thomas were easily the most “conservative.” Thomas, especially, dissented in the Voting Rights Act case, but not because he thought the Court had been unduly narrow in its interpretation of the statute in allowing the Texas water district to opt out. Rather, Thomas wanted to go well beyond the Court and to declare the whole act unconstitutional. In the strip-search case, Thomas alone would have upheld the constitutionality, though not the wisdom, of the search. So, I’m not convinced that Alito is the most conservative justice, with the Chief second, based on some unspecified concurring opinions in criminal procedure cases in a single term of the Court.

2.  Similarly, with all respect due a Stanford law professor, I find risible the opinion that Scalia and Thomas are “in play,” based on a single case that, at most, reflects an appropriate adherence to their view that the Constitution’s original understanding should, unless amended, guide their interpretation of the law. That opinion also flies in the face of the article’s main theme that Roberts is building a coalition and jurisprudential foundation for a more significant substantive shift to the “right,” and of Thomas’s opinions in the Voting Rights Act case and the strip search case. Roberts’s quest would be immeasurably more quixotic were Scalia and Thomas “in play.” Moreover, Justices “in play” will show that tendency within a few years of joining the bench. It is highly unlikely that a couple of battle-tested two-decade-or-so veterans whose jurisprudence is particularly associated with strong principles and who have resisted such superficial influences would finally succumb.

3.  Another point raised by the article is an implied refutation of the criticism from liberals such as Supreme Court “reporters” such as Slate’sDahlia Lithwick that “originalists” of the Scalia type are really acting as advocates for a political point of view whose opinions therefore have no more claim to intrinsic legitimacy than the result-oriented liberalism (or, more rarely, conservatism) of the “living Constitution” school. The writer is to be commended for putting that canard to rest, especially in a paper with an ideological vector decidedly against “originalism”: ”Justices Scalia and Thomas are apt to follow what they understand to be the original meaning of the Constitution, even when the consequences might not align with their policy preferences. In Melendez-Diaz v. Massachusetts, for instance, Justices Scalia and Thomas joined three members of the court’s liberal wing to say that the Constitution’s confrontation clause requires crime laboratory analysts to appear at trial rather than submit written reports.”

I am not as rigid (or principled) on that point as Thomas, certainly, as I have a stronger adherence of “evolutionary constitutional custom.” But their approach is consistent and merits respect that most writers, other than the author of the article, are willing to grant.

4.  The focus on Justice Kennedy and the conclusion that this is Kennedy’s Court is superficially correct, in that he tends to be the swing vote in the many 5-4 decisions of the Court. That pivotal position drives the media and legal academics’ theme of his role and stature. But I think that is wrong in some ways. First, the author himself focuses on the skills of Roberts in putting together doctrine and votes for future decisions. He is planting seeds (or landmines, if one prefers) for future doctrinal changes. Some of these will bear fruit, even if not all will. That would suggest that this is, or is fast becoming the court of Roberts, the master political strategist.

Second, this may be Kennedy’s Court in the immediate sense, but it is not likely it will become known as such. Even if one were not to stick with the customary designation through the Chief’s name, it is more likely that the future will find this to be the Scalia Court. Justices play tactical or strategic roles. Kennedy is looking for immediate influence through his swing position in particular cases. But to do so, he must engage in narrow and technical reasoning and incremental and ad hoc constitutional jurisprudence to avoid the appearance of a purely result-driven approach, as he veers to the left and then the right. This is not the stuff of a lasting legacy, though it has the institutional merit of modulating the Court’s course and reducing the ferocity and likelihood of political attacks.

Scalia, on the other hand, is a jurisprudential strategist who engages in the Long March through the Court’s constitutional battlefields. His opinions, though often concurrences or dissents, lay the groundwork for a future adoption of his principles. He works through bold assertions, opulent analysis of supporting historical materials and constitutional philosophy, and powerful writing. So, while Kennedy’s decisions and influence likely will wane quickly (as have his predecessor’s as swing vote, Justice O’Connor), future Courts can mine the Scalia opinions for usable arguments for years to come.

Thomas is a jurisprudential strategist as well, but one that always appears to be refighting the last war. One gets the sense that he is more of a law professor wanna-be, who likes to point out the Court’s previous (and current) doctrinal errors and how the case should be decided without those errors.

5.  While I find his argument that the Chief is beginning to hit his stride in building coalitions on the Court, his real test will come when the Court begins to consider executive power cases connected to interrogation, detention, and rendition of terror suspects by Bush administration officials. While the Iqbal case (dealing with burden of alleging monetary liability of high level officials for detention practices by underlings) this term was encouraging because it rejected plaintiff’s lawsuit, it was also a somewhat inconclusive case. If a more direct case of detainee rights, akin to Hamdan in 2006 or Boumediene in 2008 arises, we shall see whether the Chief can nudge Kennedy in the direction of the proper result, at least, even if it is unlikely that Kennedy can be swayed to the point of supporting a robust statement of executive power.

6.  Perhaps the Court’s move to the right will have staying power. Kennedy certainly is more comfortable there, even if it often seems hard for him to express a consistent reason therefor. The last couple of years of Kennedy’s flirting with more liberal positions may have been an aberration due to the particular cases. With the White House now in the hands of someone with strong left-leaning inclinations, and the Congress dominated by the barely-sane Left of Pelosi, Waxman, Conyers, Durbin, Franken, et al., Kennedy may see too much government in general and too little in national defense as the problem, rather than the other way around. Another theme to this article is that the Court moves right as the political branches move left. Actually, the Court has not moved significantly, if at all. But when the other branches lurch left, sitting still may seem like a big shift to the right

Five sitting justices of the Supreme Court are Catholic, soon to be joined by a sixth if, as is likely, Sonia Sotomayor is confirmed. UCLA professor Joyce Appleby takes the odd position that the Catholic justices (and, by implication, those from certain other religious groups, such as Mormons) should recuse themselves whenever the Court hears a case that might pose a conflict between Catholic beliefs and the Constitution. She points to issues such as abortion, the death penalty, and same-sex marriage, presumably issues she thinks her (liberal) side will win more easily without those pesky Catholics.

Professor Matthew Franck has little trouble taking apart that argument. He asks jokingly whether other justices should recuse themselves if there is a conflict between the Constitution and a position that is more likely to get them invited to D.C. cocktail parties. More seriously, he raises the issue of the intrusion of politics into religious liberty, one aspect of which is addressed by the anti-religious test oath provision of the Constitution.

Franck notes that Justice Scalia, who likely is Appleby’s most prominent target, has already addressed that issue. Scalia argues that, in case of an irreconcilable conflict between conscience and the Constitution, the judge must resign. But, fortunately for Scalia, he finds no such conflict in the Constitution’s recognition of the death penalty and his conscience, since Catholicism is not categorically opposed to the death penalty. Catholicism’s categorical opposition to abortion as an evil is not a problem either, as no one pretends that the Constitution actually requires recognition of a right to abortion. Likewise for same-sex marriage.

Franck supposes in Appleby the belief that a Catholic justice could only vote against a constitutional right to abortion on the basis of his or her Catholicism. He asks whether it is inconceivable that such a decision could be made either on the basis of a rational philosophical position or on the basis of a perception of the role of courts as distinct from that of legislatures in a republican system. I have made those very arguments in debates, so I can assure Professor Appleby they exist.

Appleby obviously buys into certain post-modern notions of judging. She clearly assumes that justices cannot get beyond their “ingrained convictions,” whatever that means. She also comes from an ideological position that perceives the judge’s legitimate role to be to shape and move the Constitution in the direction the judge personally believes it ought to go. In other words, judges are no different than legislators, except that they operate at a higher level of policy-making. Yet, she wants to pick and choose which “ingrained convictions” disqualify a judge. Presumably, Justice Ginsburg’s “ingrained convictions” regarding feminism, honed in years as lawyer for “women’s rights” groups and in associations with other feminists, need not require a recusal in Appleby’s universe. After all, Appleby likely approves of the result in cases such as, say, U.S.v. Virginia (the Virginia Military Institute case), where, in an opinion authored by Justice Ginsburg, the Court struck down a single-sex admissions policy that had shaped the institution over its entire century-and-a-half history.

As Franck concludes, Appleby gets little right, and her call for Catholic justices to recuse themselves from whole categories of cases is both unconstitutional and non-sensical.

One of the foremost commentators on racial issues, Shelby Steele, analyzes the politics of race in the nomination of Judge Sotomayor. He analyzes the judge’s core racialist attitudes and her lifetime of identity politics:

“Judge Sotomayor is the archetypal challenger. Challengers see the moral authority that comes from their group’s historic grievance as an entitlement to immediate parity with whites — whether or not their group has actually earned this parity through development. If their group is not yet competitive with whites, the moral authority that comes from their grievance should be allowed to compensate for what they lack in development. This creates a terrible corruption in which the group’s historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.

“Sonia Sotomayor is of the generation of minorities that came of age under the hegemony of this perverse incentive. For this generation, challenging and protesting were careerism itself. This is why middle- and upper middle-class minorities are often more militant than poor and working-class minorities. America’s institutions — universities, government agencies, the media and even corporations — reward their grievance. Minority intellectuals, especially, have been rewarded for theories that justify grievance.”

Steele says that Obama was elected as a post-racialist President and was heavily supported by Whites who longed to feel good about themselves and absolve themselves of the guilt produced by the drumbeat of indoctrination about the collective responsibility of Whites for the sins of slavery and segregation.

“But of course ‘post-racialism’ is not a real idea. It is an impression, a chimera that grows out of a very specific racial manipulation that I have called ‘bargaining.’ Here the minority makes a bargain with white society: I will not ‘guilt’ you with America’s centuries of racism if you will not hold my minority status against me. Whites love this bargain because it allows them to feel above America’s racist past and, therefore, immune to charges of racism. By embracing the bargainer they embrace the impression of a world beyond racial division, a world in which whites are innocent and minorities carry no anger. This is the impression that animates bargainers like Mr. Obama or Oprah Winfrey with an irresistible charisma. Even if post-racialism is an obvious illusion — a bargainer’s trick as it were — whites are flattered by believing in it.”

But Obama (or his media enablers) does not hesitate to play racial politics when he sees it to be to his advantage, as his campaign for office made abundantly clear. Criticism of the candidate was, with depressing regularity, repackaged by his staff as containing imaginary racial nuances and undertones. Obama could have made a post-racialist appointment, but when pressed, he reverts to racial politics. Steele considers Obama a “bound man” for that very reason and explains it thus: “I have called Mr. Obama a bound man because he cannot win white support without bargaining and he cannot maintain minority support without playing the very identity politics that injure him with whites.”

I generally find Steele’s analysis persuasive. I agree with his characterization of the Obamas. I purposely use the plural, as Michelle Obama has tremendous influence on Barack Obama, and her views are soaked in the victimhood racialism of what Steele describes as a “challenger.” Steele’s description of guilt-ridden Whites who voted for Obama as an act of expiation is dead on. A White male politician with Obama’s lack of real-world achievement, experience and credentials would have been hooted off the political stage and told to run for city council or state legislature. That would have happened in droves had he been a Republican. One need only recall the poisonous campaign by the media and other elitists against Sarah Palin, whose greater executive experience than what Obama had was held against her as a candidate for Vice-President to a degree that was the inverse of the adulation Obama received running for President.

The one qualification I have to my essential agreement with Steele’s thesis is that other Presidents have used Supreme Court nominations to reward political constituencies, including religious, racial and ethnic constituencies. There was considerable speculation that George W. Bush was preparing to nominate a Hispanic to the Court. That was one reason why the Democrats fought so viciously against the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals in 2001, as I wrote about a few days ago. When the Estrada nomination collapsed, the focus shifted to Alberto Gonzales. When he became Attorney General, it became clear that he was on W’s short list to the Court. The undeserved demonization of Gonzales, and the lack of another opening on the Court deprived Bush of the chance to nominate Gonzales (who, by the way, would have aroused opposition among conservatives for his squishy stance on abortion and affirmative action).

So I do not criticize Obama’s selection of a Hispanic nominee. I have been predicting such a nomination to my constitutional law students for many years. But I agree with Steele that the particular nominee, Sotomayor, is not just a “representative” for Hispanics. Previous nominations of this type were to celebrate the assimilation of new groups, a sign that they “had arrived.” Sotomayor is the opposite, a symbol of a certain kind of political attitude, a view of America’s racial balkanization.

When Judge Sotomayor’s questionable remarks that implied that a “wise Latina woman” would likely come to better judgments than a White male caused a furore, the Obama administration settled on a strategy of minimizing them. But they did that not on the substance of the remarks, but on their casualness. Even though the remarks were made in a presentation and a speech (later reprinted) that carefully set the framework for them, the administration dismissed them as carelessly chosen words in a single isolated instance.

Such a strategy is vulnerable to the discovery of additional evidence. Unfortunately for the administration and its nominee, evidence of Sotomayor’s repeated use of that phrase and variants thereof has now surfaced. Far from being an isolated instance of getting carried away by the moment of the appearance before a minority group at U.C. Berkeley, the language and the ideology behind it are staples of Judge Sotomayor’s speeches. The collapse of the proffered explanation, which was always laughable, is fast making her words even more controversial and damaging than they were originally.

Some other conservative voices weigh in on the nomination of Judge Sotomayor.

Here is the never timid Ann Coulter for the red-meat wing. She focuses on Sotomayor’s empathy in the New Haven firefighter case.

Then the acerbic Mark Steyn brings to light another curious manifestation of the judge’s empathy.

For the intellectuals (actual or fancied) there is Professor Rick Garnett commenting on the tone of the confirmation process.

Then there are the unexpected liberals, like Jeff Rosen in The New Republic, who lays out a case against the judge, and law professor Jonathan Turley, who dares to say what no liberal will about a female or a racial minority, that she is not a very deep intellect. Turley is disappointed because he would have preferred the more intellectual (and far more controversial) Diane Wood as a counterweight to Justice Scalia. Sure, Jonathan, and good luck with that.

Scrappleface has heard an interesting view on the nomination—from Sotomayor.

But a big event in the lives of the two young men he touched with his personal generosity.

I have liked Clarence Thomas since I became aware of him during the first Bush administration. His great personal decency, his inspiring story, and his strong intellect did not deserve the vilification he received from Democrats and their liberal pressure groups during the “high-tech lynching” of his confirmation hearings.

There are many reasons why liberals despise Clarence Thomas, foremost among them that he is a living witness that some Blacks refuse to conform to the orthodox liberal narrative that the only way to salvation out of the racist system that is the U.S. is to follow the liberal creed. One can add to that list the fact that Thomas is a “regular guy,” with no pretensions to the elitism that characterizes many of his critics. Via Hot Air, here is a small example of Thomas’s character. It is said that you are who you are when no one is looking, or when no one knows of your status. BTW, Thomas most enjoys getting in his RV and hanging out with other RV’ers. I don’t have an RV, so I cannot comment on the essential nature of his hobby, but I have heard that it is yet another example of his down-to-earth non-pretentiousness.

The high school that the students in the video attended asked Thomas to be the graduation speaker. What a great graduation. I cannot see our law school asking Thomas to speak at graduation or anytime else. Too controversial. Ginsburg, yes. Even O’Connor and Kennedy. Not that he would necessarily come, though he seems to have no problem coming to Pepperdine. Instead, we get the former general counsel of Warner Brothers as graduation speaker (no offense to him, but he’s not at the level of a Supreme Court justice).

That is the question George Will asks about Judge Sotomayor’s race-based views of judging. The point is especially relevant in regard to her attitudes about affirmative action, a matter brought to a head as a result of her panel’s decision in the New Haven firefighters case.

Much is made of the opposition by some conservatives and a few Republicans to the nomination of Judge Sotomayor. They are painted as denigrating a wonderful personal American story. They are disparaged as “anti-Hispanic.” The (liberal) media commentariat ominously warns that opposition to Sotomayor will hurt Republicans with Hispanic voters and drive them to the Democrats. They then piously urge the conservatives not to oppose her.

I stand by my previous position that I think Republicans should go easy on her. Focus not on defining her, but on using her to define Obama. She will get confirmed, and Republicans should not waste political capital targeting her as such.

That said, the hypocrisy of the Democrats and the, at best, ignorance but, more likely, willful connivance of the media never cease to amaze me. Does no one remember the 2001 nomination by George W. Bush of Miguel Estrada to the D.C. Circuit, generally seen as a whistle stop for him on the way to the Supreme Court (as the Democrats at the time agreed)? The Democrats derailed that nomination with a filibuster after a vicious campaign designed to vilify Estrada and attack his “racial authenticity.” The Democrat obstructionists refused even to give him an up-or-down vote.

Estrada is a brilliant man and a genuine American success story, at least as much as Judge Sotomayor. Among other things, he graduated from Columbia University (magna cum laude; Phi Beta Kappa) and Harvard Law (magna cum laude) after joining his divorced mother in this country from Honduras as a 17-year old not speaking much English. He was an editor on the Law Review and clerked at the federal court of appeals in New York and the Supreme Court for Justice Kennedy. He, too, earned the usual honors and accolades to his strong intellect.

He then worked for a Wall Street law firm before becoming an assistant U.S. attorney during the first Bush administration. He then joined the Clinton administration as an assistant to the Solicitor General. When he was nominated to the court of appeals by George W. Bush, he was given a unanimous well-qualified rating by the ABA.

What did the Democrats fear? They did not want Bush to put the first Hispanic on the Supreme Court. Especially one who sees himself not as a member of a tribalist identity group but as an American. He would not make the kind of comments for which Judge Sotomayor has come to be notorious.

Previously, I posted some observations about the ideological post-modernism of Judge Sotomayor’s identity-group “empathy.” 

Where it gets dicey is when an unremarkable common-sense truth that we are shaped by our experiences and backgrounds is given normative approval to be used in a matter that calls for such factors to be carefully circumscribed. The thrust of Judge Sotomayor’s assertion is that the physiology and the cultural background so dominate each member’s personality that he or she is more like every other member of that group than like any white male. This is the essence of identity-group affiliation over individual quality. Extending that to the exercise of empathy in judging, as both Obama and Sotomayor would have it, focuses on the common identity-group characteristics of the litigants rather than their individual experiences. Obama in setting out his ideal qualification for judges focused on empathy, on understanding for people who are ”poor or African-American or gay or old” or a “young teenage mom.” Sotomayor focused on identifying the judges who presumably would understand—have such empathy—and found white males, even “wise” white males wanting in comparison to Latinas. Contrast Judge Sotomayor’s arrogant racialism with Condoleezza Rice’s statement at the 2000 Republican convention that she was proud to be in a party that saw her as an individual rather than as a member of a group.

If empathy is to enter the judge’s decision, and I have no problem with that as a broad proposition, it can and must occur only on an individual basis, not a categorical one, and certainly not one based on racial or other identity-group categories. It has long been a staple that the application of law should take into account the circumstances of the individual. A fundamental principle of our conception of justice is equality before the law. But, as every parent knows in raising more than one child, aiming for equality at a high level of abstraction does not mean treating every person identically and disregarding particular characteristics and circumstances.

Aristotle declared that the judge must do equity. He (and in classical Athens it was “he”) is given the law with which to work. But the law, such as a decree of the Assembly, is broad and indeterminate, often at a moderately high level of generality. Drawing lines on the basis of broad perceptions, including perceptions of class, marks the function of the legislature. For example, in setting a certain marginal tax rate for income of $100,000, the legislature does not take into account the particulars of individuals who earn that amount. The tax rate does not vary depending on whether or not a person is helping out his aged parents or lives in a locale where the price level for food and services is higher than in other places. As long as the legislature steers clear of certain disfavored class-based lines, it is free to legislate on the basis of class generalizations, even “stereotypes.” That said, supporters of such a piece of tax legislation may try to defend it on grounds akin to the Aristotelian “distributive justice.”

Legislation indeed is intended to cover, broadly, situations that have not yet occurred and where the parties’ particular circumstances are unknown. By contrast, a judge makes determinations based on specific facts that already have occurred between specific litigants. The judge, says Aristotle, must apply the law as the Assembly would have wanted in that particular case had the litigants’ specific cause been known. Since the Assembly would want, for various reasons, to see the law achieve justice, the judge must seek to do the same. This requires the judge to apply the law as the Assembly wrote it, but take account of the particularities of that case.

Unlike the legislative function, the judicial trial function is particularly suited for such individuated justice. The liability or guilt phase addresses the particular facts of the dispute but, with a few exceptions such as self-defense, insanity, or the controversial “hate crimes,” usually does not focus specifically on the background or specific characteristics of the actor and his or her victim. Such more specific investigations likely are considered at the sentencing or damages (especially punitive damages) phase. It is there that the duty to do equity or retributive justice falls most heavily on the judge.

Past the criminal law process lies executive clemency through commutation of sentence or pardon, which triggers further close consideration of the individual’s characteristics and experience. Though the executive is said to “temper justice with mercy,” the clemency decision is really another version of “doing equity,” and doing equity is simply acting with empathy toward the criminal actor—and his or her victim. Empathy is an attitude of looking at all persons affected by the act in a humane and respectful manner, but one that is unbiased between them. That is what distinguishes empathy from sympathy, the latter meaning that one is favorably disposed toward the object of sympathy.

An outright assertion that the defendant deserves a break (or a disadvantage) because he is a White male or she is a Latina, or that either belongs to some other identity group, would be rejected as inappropriate. Such a consideration of blatant group affiliation runs counter to the individuated nature of empathy. It would turn empathy into bias or, if that sounds too harsh, sympathy. Indeed, the court must be careful not to allow empathy to override the basic demands of the applicable law and to consider carefully the factors to be weighed in empathy. Otherwise, empathy runs the risk of crossing the line to arbitrariness. As Aristotle propounded the practice, the judge must consider how the legislature would have wanted the basic commands of its law applied in these particular circumstances.

Similarly, “cultural defenses” are highly controversial, and, generally our system has rejected them in favor of the approach, “When in Rome, do as the Romans.” At sentencing, such cultural factors might enter into the court’s decision, but only through a clear and careful showing of impact of specific and overpowering cultural traditions on the individual, undiluted by his or her exposure to American culture. Some inchoate cultural “experience” will not suffice.

In that vein, then, “experience as a Latina” specifically, or as a White male, becomes irrelevant to the proper application of empathy. The judge’s oath is, “I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.” Properly applied empathy can fit within the judicial oath. Sympathy and empathy only towards a particular class of litigants cannot.

Nor does it matter that Judge Sotomayor will be sitting on an appellate court. Her job is not to legislate. So her position does not entitle her to dispense with the boundaries of the law or to decide a case based on broad appeals to identity group empathy. An intermediate court of appeals, sitting as a court of error, plausibly may evaluate whether or not the trial court exercised an appropriate degree of empathy toward the individual affected parties, though for various reasons due deference is given to the trial court’s findings. But the Supreme Court, sitting as a court of law, is not the place for empathy, but for the meaning of law as a broad principle that governs all.

Everyone has experiences. And everyone has his or her own physiological structure. There may well be value in having someone other than former appellate judges on the Supreme Court, or people who did not go to elite law schools. For that matter, there might be value in having non-lawyers on the Court, especially if the purpose of the experience is not to help the judge understand the law, but to dispense empathy. So, Judge Sotomayor’s totality of her experiences, including her cultural influences, has value to bringing an understanding to the law that is different from that of anyone else, just as my life experience, including as a German immigrant, might have such value, and just as the experience, for example, of a White male raised by a single parent who then worked his way through a part-time law school program might have value.

Empathy is the ability to see a matter through the eyes of another. Being Latina might allow Judge Sotomayor more than a White male to put herself in the shoes of a Latina client. But it does not let her put herself in the shoes of a White male as well as Justice Scalia can. And it does not let her put herself in the shoes of a German immigrant, or, given her elite education and work history, someone who worked his or her way through a state law school, any better than her fellow Justices. Experience and the ability to bring appropriate empathy to a case are personal, defined by each person’s unique physiological characteristics and social upbringing.  But it does not mean that Judge Sotomayor’s background, or mine, or that of the hypothetical White male inherently makes any of us more capable of empathy than the others. It certainly does not mean that her Latina background entitles her to make decisions on the basis of identity group oriented empathy or “bias.”

Contrary to the assertions of some conservative critics of Judge Sotomayor’s nomination, the problem is not that “empathy” is a code word for judicial activism. Judicial activism in either the sense of declaring an unconstitutional law to be such, or in the sense of applying the law empathically to the particular circumstances of a legal case, is not illegitimate. The problem is worse than those critics have described it. As presented by the President and his nominee, framing the issue in racialist terms perverts the proper role of empathy within the law.

Stuart Taylor of National Journal has a fascinating post on the disingenuousness of the liberal appeal to “empathy”. He links to this post by Professor Orin Kerr at the Volokh Conspiracy, which also is well-worth reading for its attempt to describe the appropriate use of empathy in extremely close cases, but to shun it in any case where the law as generally accepted is even slightly in favor of one side.

Kerr argues that the usual case is not a 100% clear proposition for one side, at least not if the case gets to the Supreme Court. He contrasts the “conservative” position (my characterization; he doesn’t assign ideological labels) that such close cases should trigger careful weighing and analysis of the legal arguments and that the one with the apparently better authority wins, with the “liberal” position that a close case is a source of judicial empowerment for a judge to favor the side he/she likes (has empathy for), as long as some plausible legal argument can be constructed for the result, regardless of the overall comparative legal merits of the parties’ positions. Kerr places Obama squarely in the latter, “liberal” camp, due to Obama’s statement that a judge should exercise empathy whenever “the constitutional text will not be directly on point [or the] language of the statute will not be perfectly clear.” [Emphasis mine.] Obama’s reputation as a wordsmith must mean that he purposely used those words. This lax standard fairly begs the judge to look for an ambiguity and exploit it to make ideologically-driven (empathy-based) policy, rather than decide cases according to the “better legal position.”

Many of the comments to Kerr’s post develop this further in an intellectual, though sometimes pedantic, manner. They take Kerr to task about, most relevantly, the question whether there ever can be a “right legal result.” In a different vein, one commenter credibly notes that empathy is a one-way street ideologically. It’s a liberal code-word, as it is unlikely that “empathy” will come into play with a landowner whose residence is being taken under eminent domain to be given to the mayor’s developer-friends (the Kelo scenario) or a ninth-month fetus if the woman claims that having the baby will cause her psychological health problems (the Roe/Casey scenario).

While I substantially agree with Professor Kerr, my objection to Obama’s “judicial empathy” qualification is a bit different. The problem for me is the identity-group-based concept of empathy that Obama uses. He filters his perceptions through the prism of the elite, post-modern, Critical Legal Studies-influenced legal academy to which he long has been connected. Reason is out; emotions are in. Formal rules have no objective reality and are really phenomena of this or that subjective will. Law is that which the dominant groups make it, and therefore nothing more than an aspect of power politics. It’s Thrasymachus from Plato’s Republic presented more ponderously and humorlessly.

Which, of course, is why Obama’s selection of Judge Sotomayor makes such sense. She is an identity-group liberal whose views on empathy, its source and its use in deciding concrete cases, match the President’s. Her infamous remarks in 2001 at UC Berkeley Law School that declared that, on average, white males make inferior judges to Latinas expose her identity-group-based theory of good judging:

“Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…. I am… not so sure that I agree with the statement….I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

(This is the text of the whole speech.)

According to her categorical racial description, a white man’s life, presumably any white man’s life no matter how arduous, cannot match that of a Latina, no matter how pampered. His life experience is simply less valuable than hers, and he is a poorer judge for it. Even taking her remarks in a much more benign manner, as much less redolent of notions of race and sex-based superiority, they are evidence at least of the notion that judges should celebrate their racial identity and their sex and, rather than try candidly to suppress such influences, should openly bring them to bear on the task of judging. In the context of the whole speech, I see her perfunctory nod to trying to rise above those experiences and apply the law impartially as mere windowdressing.

The obvious question then is how she can empathize with white male litigants in a dispute, say, with a Latina any more than a white male can empathize with the Latina. One response of liberals is that she can still understand and empathize with white male litigants because of her experience of living in the U.S., but that her white male counterpart cannot, as he is stunted by a comparable lack of experience with being an ethnic minority or a woman. Leave aside the obvious oversimplification of the “American experience” presented by her cartoonish Balkanizing and hypothesized hermetic segregation of ethnic groups and the sexes in the U.S. Leave aside also the influence on our lives of matters other than obsessive racial identity and sexual politics, matters that affect the average person in his or her daily existence much more, apparently, than it does members of the pampered legal elites such as Judge Sotomayor.

Unless Latinas have especial experiences that make them superior to Black males, how can liberals, among them Judge Sotomayor, explain the views of Justice Thomas on affirmative action? He has a life story and experience every bit as remarkable as that of Judge Sotomayor (a fact with which liberals were singularly unimpressed when he was nominated). So, if his rich experiences make him a better judge and if he is someone who uses his personal views in his decisions, is his robust criticism of affirmative action better law and more empathic than the support of affirmative action by the three white guys Souter, Stevens, and Breyer? And why is Thomas’s approach to affirmative action so radically different than Sotomayor’s? Is he able to suppress his personal beliefs and approach the issue more dispassionately on the law? For one thing, reading Thomas’s opinion in the Michigan affirmative action cases quickly dispels the notion that Thomas is being clinically dispassionate. More significant, if he is, that just demonstrates that, contrary to Judge Sotomayor’s belief, it is possible to rise above one’s personal views and aim toward legal impartiality. In the alternative, if Justice Thomas is influenced by his experience and his inherent physiology and culture, does the clash of his views with those of Judge Sotomayor (and, for that matter, those of his predecessor, Thurgood Marshall) mean that personal experiences trump identity-group characteristics? If it does, her assertion that, broadly, Latinas are better judges than White men is nonsense. Everyone has experiences, even White males. As discussed below, the attempted way out for liberals is to charge that Thomas’s views are not “authentic.”

There still remains the point that she believes these differences to come from inherent physiological and cultural differences. I will not, as some have done, accuse her of racism or sexism for that. There is much more research to be done, but it is almost certain that there are personality traits and mental characteristics that are hard-wired. It is also almost certain that some such traits and characteristics may differ between the sexes. And it is plausible that some may even broadly differ between various racial and ethnic groups. Her sweeping and categorical dismissiveness of white males’ lack of richness of life experience is, frankly, ignorant and biased, as is her implied generalization that, therefore, Latinas (or even Latinas with the same academic and professional background) are better judges than white men. But her point that there are differences in our backgrounds shaped not only by our personal experiences but by inherent physiological and cultural factors, and that these differences shape who we are, is really quite unremarkable.

I accept that judges, like everyone, are shaped by their physiology and by inherent cultural factors. Women as a whole may be physiologically more sympathetically inclined to the welfare state than the more individualistic male sex. Religious belief and political ideology may be connected to genetics, and such genetic expression may be distributed non-randomly across racial and ethnic groups. The problem is that such hard-wired general characteristics do not apply to the same extent to all women and men or members of the various racial and ethnic groups. Such group-based identifiers become of little use in evaluating the merits or competence of a particular individual, particularly the small universe of Supreme Court nominees.

I also agree, as anyone would, that one’s personality is shaped by life experiences. But I reject that those experiences are primarily race or sex-driven (or, for that matter, by affiliation with any other trendy politically-correct identity group). Experiences are ultimately individual and may alter or reinforce other experiences as well as the hard-wired aspects of our personality. Someone who is a married, suburban, Black, female, fifty-year-old, wealthy, private school and Ivy League educated, entrepreneur who belongs to a country club and votes Republican has more in common, based on her individual experiences, with her White male counterpart than she does with a poor, unmarried, inner-city ghetto-dwelling, high school drop-out receiving welfare who is also a Black female. And the White male who has raised a daughter may have more relevant experience in dealing with a young teenage mother than does Judge Sotomayor.

To suggest otherwise makes skin color, sex, and the various other politically-approved traits the markers for “authentic” experience, wisdom, and, ultimately, qualification to be a judge. And that is what many liberal intellectuals and pundits seek to do. Curiously, in liberal circles such an identity-group based standard of authenticity does not apply to White males. As described earlier, White males are oddly non-racialized and sexually-neutered. In that narrative, Whiteness is an absence of ”color” and only people of color have that wisdom that comes from being non-White in a White society, and female in a male society. White males have no such reciprocal experience. The paradoxical result of this construct is that White males are given much more freedom of diverse opinions based on their physiological and experiential characteristics than are non-Whites and females.

Liberals find it wrong-headed, but excusable, for a White male to oppose affirmative action policies. But woe to the female or, worse, non-White, who does so. Such a person is a race traitor and his or her opinions are not just wrong policy, but reflect a deeper inauthenticity. Such a person is somehow defective and his or her own sanity and human fullness are attacked. From that pespective, identity-group physiology and inherent cultural characteristics are so fundamental and so uniform that they cannot possibly be overcome by individual experience. Just contrast the treatment given by liberals to Justices Scalia and Thomas over their similar voting pattern on the Court. Disagreement and debate regarding the former; scorn and ridicule regarding the latter. To liberals, Thomas is inauthentically Black. His perspectives are not truly those of members of that identity group. Operating outside the straightjacket of the inherent identity-group physiology and cultural characteristics, his experiences do not really count. Therefore, his opinions on such issues are unnatural and perverse.

Some thoughts on the nomination of Judge Sonia Sotomayor to the Supreme Court. First, everyone needs to take a deep breath. The liberal chattering class is in full hagiography mode about the difficult life Judge Sotomayor had as a child. Having reflected recently on my own materially-constrained childhood in post-World War II Germany, I am not as riven by guilt and awe about the fact that someone can rise above his or her condition as the liberal elites are, most of whom came from considerably more well-to-do backgrounds.  If anything, deprivations in one’s youth are likely to have a character-building effect, as long as one has certain internal benefits, such as intelligence or talent. Judge Sotomayor has enough of those. Also, with boring predictability, Leftie pressure groups and pundits are playing the race card, daring Republicans to oppose a “Latina” or “Puerto Rican,” while calling for civil hearings and quick confirmation.

Conservatives should consider that, while Sotomayor is a standard liberal who will magnificently meet Obama’s litmus test of judging by “empathy” (i.e., certain litigants are to be preferred over others) rather than the law, there were worse possibilities. Indeed, almost anyone on the guessed-at “short list” would have been worse: Diane Wood, Elena Kagan, Harold Koh, Carlos Moreno. The mind shudders. We weren’t going to get Justice Scalia’s younger philosophic clone. Elections matter, remember. My own preference for a Democratic Hispanic nominee would have been Sotomayor’s fellow-Second Circuit judge, the Clinton appointee Jose Cabranes. Cabranes is extremely sensible on matters of executive power and, simply, more intellectually brilliant than Sotomayor. But he has a physical characteristic different from Sotomayor, which characteristic was a disqualifier in view of Obama’s determination to appoint a woman.

Unless some horrible fact about her past emerges, she will be confirmed. As has started already, the media wing of the Democratic Party, i.e., the newspapers and broadcast networks, will join the left-wing issue groups to persuade the public that she is the wisest judge at least since Solomon. My approach would be not to make a big fuss over her, given the President’s immense popularity, her minimally acceptable qualifications, and the force of ethnic and sex-based identity politics. Conduct the hearings, be respectful, even supportive, score political points, blunt any advantage Obama might seek from painting conservatives and Republicans as being opposed to a Hispanic-ancestry nominee. Don’t be obstructionist. Spend political capital on excoriating Obama’s economic policies. Help Dick Cheney by going on the attack regarding any loosening of the Bush anti-terror policies under Obama. Develop alternative policy proposals. But keep your powder dry on judicial nominees. With aging justices and a likely two-term presidency, Obama and the Dems will have more nominations. And they will be worse.

Republicans overwhelmingly voted in favor of Clinton’s nominees Breyer and Ginsburg, not because of the nominees’ unique brilliance or judicial moderation. They did so because they followed their position that the President deserves his nominees as long as they are sufficiently qualified. Republicans did not do to them what the Democrats did to Robert Bork and Clarence Thomas (in both of which Joe Biden played a leading role in the Democratic character assassination). Democrats, in turn, did not reciprocate. Even in regards to the exceedingly well-qualified and moderately-conservative John Roberts and Samuel Alito, Democrats vilified the nominees and, in significant numbers, voted against them (including then-Senator Obama who even participated in the Democrats’ fruitless filibuster against Alito). The problem for the Dems in this regard is that their constant obstructionism of any Republican nominee makes it difficult for them to argue from principle rather than rank politics and opportunism. It blunts their case if there were a dubious Republican nominee. On the other hand, the Republicans can get credibility by continuing to restrain themselves until such time as a truly ideologically awful and judicially unpalatable Democratic nominee emerges. As noted above, that will happen. Moreover, at such later date, Obama will have lost some of his luster. That, too, will happen. Such opposition then will be much more persuasive and effective.

That said, here are some reactions to Sotomayor. Kathryn Lopez at National Review’s The Corner links to the forum at Duke Law School at which Sotomayor made her remarks that the courts of appeal are the places where policy is made. Conservatives have made much of those remarks as evidence that she is a programmatic liberal. I think that there is plenty of evidence without that video. Just look at many of her decisions, including the recent one in Ricci, the New Haven firefighters case.

The video itself is hardly some “smoking gun.” Sotomayor is expressing several common sense points. First, very few cases go beyond the courts of appeal to the Supreme Court. So, most judicial doctrine is “made” at that level. Second, there have been plenty of philosophers of law over the centuries who have argued that, effectively, the lawmaker/legislator only creates a vessel or skeleton of the law. The one who gives it application in particular cases, i.e., the judge, fills that vessel with practical content and true legal meaning. Third, the statement reflects a view that whenever a judge decides an issue (including the decision not to decide, such as by denial of standing to sue), the judge is making policy. While not a particularly useful device to analyze the proper role of courts, there is a certain tautological truth to the observation.

Fourth, and most controversial, she may be referring to the view founded in Legal Realism and taught at law schools that judges just decide cases according to personal traits and preferences. The Critical Legal Studies variants add to that view the dominating influence of class, sex, race, or other identity-group-driven characteristics. That view, in turn, is influenced by post-modern certainty that truths are indeterminate, which manifests itself in the law by ultimately denying that there is a difference between law and politics. It’s all a question of power. If that is so, the formal commands of the law lose their force. They no longer set boundaries to the proper role of judges and become at most factors to be considered among a multitude of others when deciding a case. Depending on the political and personal opinions of the judge and the particular facts of the case, the law’s commands (whether statutory/Constitutional language or judicial precedent) may be the primary factors the judge considers and non-formal legal commands as secondary or less. Justices Kennedy and Breyer come to mind when they defend their use of foreign legal authorities to buttress their (usually atextual) interpretations of American constitutional law as non-binding, but merely illustrative. Or, formal legal norms may become merely convenient asides to support a decision reached on other grounds. This is the vision evoked by Obama’s frequent assertions that he is foremost looking for a judge with “empathy” or by much legal writing and panel discussions in law schools.

It is the last of these that conservatives find objectionable. Despite Obama’s later denials, “empathy” is seen (correctly) as a codeword to favor the positions of certain litigants over others and to subordinate the formal legal merits of their respective positions. “Empathy” is such an undefinable concept that it screams arbitrariness in a traditional legal sense. These are appellate tribunals, after all, not some small claims or justice courts. While I share the concern, and, indeed, have contempt for the Legal Realist position when it is used in a normative rather than a barely descriptive manner, I do not believe that the video proves a case. There are other pieces of information that make that case. I don’t see Sotomayor endorsing a view in the video that judges should simply be making policy judgments that override formal legal commands. To me, her language is much more matter-of-fact in describing what the effects of many court of appeals decisions are. At least the case against her that she is a reincarnation of Justice William Douglas, or even William Brennan, has not been proved by this soundbite.

Richard Garnett points out the double standards employed to measure intellectual qualification and compelling life story of Republican nominees versus Democrats.

Ed Whalen raises a more serious concern about Sotomayor’s rate of reversal by the Supreme Court, and her willingness to read statutes in highly questionable manner. The latter goes to the issue of her willingness to discard formal legal commands in favor of personal politics discussed above. Whalen also discusses and linksto the notorious New Haven affirmative action decision, in which New Haven scrapped a proper promotion exam because too many Whites and too few racial minorities passed the test. Sotomayor was the judge on the appellate panel. When the case came for en banc review, the review was narrowly denied. Fellow-Clinton appointee Judge Jose Cabranes wrote a strongly-worded dissent that disparaged Sotomayor’s opinion. I will post more about my impression of Judge Sotomayor’s intellectual prowess and her identity-group politics later.

This situation reminds me of a quote from Nebraska Senator Roman Hruska on the occasion of President Nixon’s unsuccessful nomination of Judge G. Harrold Carswell to the Supreme Court. When opponents characterized Carswell as mediocre, Hruska responded, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”

One of the few men on President Obama’s list for the Supreme Court is his good friend Deval Patrick, the governor of Massachusetts. The voters of Massachusetts are underwhelmed by his performance there. His former professor at Harvard, Alan Dershowitz, is equally underwhelmed. And not just by Patrick’s performance as governor:

“’He’s a mediocre governor, mediocre lawyer . . . he would not be one of these enduring types,’ said Dershowitz on MSNBC. ‘That would be a crony appointment that might make it through the Senate because the Democrats will have 60 votes, but it would not serve the interests of the country, or the interests of Barack Obama’s legacy to appoint his buddy, who is just not a great lawyer.’”

This is one of those few occasions that I agree with Dershowitz. Patrick would be a clear crony appointment, a Harriet Miers nomination on steroids. He lacks a clear distinguished record as a lawyer, a judge, a professor, or even a politician. This is not something Obama needs to do politically. In fact, I think it would hurt him politically. Nor does it suit his diversity agenda. Though Patrick is a liberal, he does not have the heft of other liberals on Obama’s list. Certainly Obama would be ill-advised to use his first pick on him. Which is why I don’t think Patrick will be the nominee.

The retirement of Justice Souter is insignificant, much as his presence on the Court has been. The bookish bachelor and iconoclastic former New Hampshire attorney general has had no impact on Court doctrine or direction to speak of. When George H.W. Bush appointed him, many saw Souter as an unknown quantity. Bush appointed him on the assurances of chief-of-staff John Sununu and Senator Warren Rudman that Souter was a reliably centrist conservative.

But he was a stealth candidate. At the time of his appointment, I wrote an article for the school newspaper extolling that stealth aspect of the appointment, as it made Souter less of a target for the Democrats to “bork” him with a smear campaign as they had done to Judge Robert Bork in 1987 and would do to Clarence Thomas in 1991. I assumed that the men vouching for Souter’s conservatism actually knew him well enough to make that evaluation, and I hoped that Souter might turn out to be a much slimmer and less intellectually challenging Bork in disguise. Boy, was I wrong. Souter turned out to be a stealth candidate, all right. But for the Left.

A good story about Souter. He joined the Court’s opinion in the Kelo case, which upheld a very broad interpretation of eminent domain so that government can seize a person’s residential property, pay him “just compensation,” and then turn that property over to another (politically-connected) private person for development. Some residents in the New Hampshire town where Souter long maintained a home proposed to seize it, pay him, and turn the home into a private inn/museum dedicated to the history of freedom and its erosion. Each guest would get a copy of Ayn Rand’s Atlas Shrugged. Ultimately, the townsfolk voted against the plan, but it was a grand symbolic step, anyway.

I certainly won’t miss him. That is not a function of his political/judicial ideology. When Justice Brennan left, I was glad because the Left had lost a very effective judicial politician. But I also greatly respected Brennan’s political skills in putting together liberal coalitions on the Court and the intellectual challenges his constitutional views presented to our side. I will miss Justice Stevens for those same things when he retires. The most that I can say about Justice Souter is that his type of personality is needed to make the Court a more effectively-functioning collegial institution. The Court can’t be full of Justices Scalia, Thomas, and Stevens going their own ways.

There seems to be an emerging view that President Obama will appoint a woman. I think there is a good chance of that. The appointee will also be a reliable liberal. A good bet is Solicitor General and Harvard Dean Elena Kagan, though I think that Obama would have preferred to hold off on that one for a year to give her more seasoning. Because of her newness in that position, Obama might turn to the safe appointment of a sitting judge, like Sonia Sotomayor (which would also allow Obama to appoint a Hispanic) or Diane Wood. He can always appoint Kagan, whom he certainly wants on the Court, at a later date, such as when the expected retirement of Justice Ruth Bader Ginsburg occurs. Going against appointing another judge is that so many of the sitting justices have come from the lower federal courts, and the Supreme Court could use some diversity of professional backgrounds. Whomever Obama selects, the appointment won’t affect the ideological balance on the Court.

UPDATE: Ed Whelan at National Review’s Bench Memos provides information on the radically leftists views of the likely Obama candidates for appointment to the Court.

This is a summary of the cases that are to be argued before the Supreme Court. This is an unusually heavy-duty end to the term’s arguments. As an aside, there is some speculation that Justice Souter is going to retire, as he has not picked law clerks for the next term.

Justice Souter describes his experience as an intellectual lobotomy. As the article points out, Robert Bork imagined the opportunity to have been part of the Supreme Court an “intellectual feast.” Quite a difference. One suspects that, while Justice Scalia may have a certain frustration with some of the justices’ opinions, he does not consider his overall tenure in the same light as does Justice Souter. That may explain the difference in rhetorical style and intellectual heft of Scalia’s opinions compared to Souter’s. To borrow a phrase, Souter’s just not that into it.

He’s right, though, about Americans’ general ignorance about history and civics. If they weren’t, the Obama policies would have been laughed out of discussion long ago.

One of the “mainstream” organizations in the U.S. that I find truly repellent is the American Bar Association for the pervasive and unctuous political correctness in everything it touches. For a number of years, the ABA used to have a prominent role in the evaluation of federal judges by Congress. WIth the increasingly politicized stance taken by the ABA on nominations of conservative judges (that of Judge Robert Bork being a major deal-breaker) and on political issues (against Republicans; for Democrats), George W. Bush finally evicted the ABA money-changers from the temple.

With a change in administrations, it is almost a certainty that this political sanity will end, and that the ABA will come back to give its imprimatur to liberal nominees. But then, given the sloppiness of Obama’s team’s vetting of executive branch nominees, perhaps even the ABA can be useful. Ed Whelan of National Review discusses the role of the ABA (see the links in his posting) in previous nominations of conservative judges and the organization’s descent into the miasma of left-wing ideology.