Monday, June 28, 2010

A Thought about the Kagan Hearings

Recall Justice Sotomayor’s Supreme Court confirmation hearings last summer. She’d been nominated by a president who ostentatiously prized “empathy” in judges. And she’d said publicly on numerous occasions that a “Wise Latina” was psychologically and culturally positioned to render better judicial decisions, at least some of the time, than other judges. Remarks of this kind didn’t raise an eyebrow in liberal circles, but they didn’t fit comfortably with common-sense understandings of judicial impartiality. A lot of people had believed it when they were told that “justice is blind” and that how you fare in a court of law should depend on how the law applies to what you did, not on who you are.

So it seemed before the hearings that Sotomayor’s principal challenge was to use hostile questions from Republican senators as an occasion to explain the liberal interpretation of judicial impartiality to the American people. I don’t think I’m sticking my neck out by saying that, in this connection, she and the Obama administration punted.  Apparently lacking words of her own, Sotomayor repaired to substantially the same formulations that Chief Justice John Roberts had used to defend his judicial conservatism at his own confirmation hearings.

Here’s how Peter Baker and Charlie Savage described her testimony at the time in the New York Times:

“She repudiated the president’s assertion that ‘what is in a judge’s heart’ should influence rulings and rejected the liberal idea that the Constitution is a ‘living’ document whose meaning evolves with society. Instead, she said the Constitution was ‘immutable’ and did not change except by amendment. And she dismissed any role for foreign law in deciding cases, an influence some liberal legal experts argue should be considered.

"Louis Michael Seidman, a Georgetown University constitutional law professor, said Judge Sotomayor adopted a ‘fairy tale’ definition of judging that ignores the discretion they have to decide hard cases where the legal materials do not dictate outcomes.’

“‘She reinforced the official ideology, and it makes it that much harder for other judges later on to talk to the American people as if they were adults about what courts actually do and what constitutional law consists of,’ Mr. Seidman said.”
There is more than one way to interpret Sotomayor’s and the Obama administration’s reticence. Here are the first three interpretations that come to my mind: (1) they really believed what she was saying and had simply faked liberals out; (2) they knew better, but didn’t think that they could sell the correct idea of “judicial impartiality” to the American people so they didn’t try; or (3) being extreme legal realists, they thought talk about judicial impartiality is just a political weapon which they were as entitled to brandish for their own ideological purposes as conservatives. Maybe there are others I haven’t thought of.

The Kagan nomination will give us some indication about which, if any, of these interpretations is correct. I’m hoping that she and the administration will find the words to uphold a standard of judicial impartiality that liberals can embrace forthrightly without cynicism. If they don’t, that will invite the suspicion that they can't.

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