An Honest Liberal Law Professor Takes Sotomayor to Task

I could not approach being nearly as eloquent as Georgetown law professor Louis Michael Seidman in an on-line debate over at the Federalist Society.

Believe me, this guy is as liberal as they come. He not only defended SS's statements about being empathetic and being a wise Latina but also the irrelevancy of not being able to find a single case in which partial-birth abortion was medically necessary.

But at least the guy is calling this nomination procedure like he sees it. On July 14 he wrote:

"...I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts?

First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

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

Today he explained himself even further -- not backing off from what he said:

"...There's no denying that Republicans on the committee put Judge Sotomayor in a difficult moral position...  Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake.

To his tremendous credit, President Obama has made an effort in his public statements to shift the official ideology of judging so that it has some contact with reality. Yesterday, Judge Sotomayor explicitly repudiated the President. Here are some of the consequences of this kind of unilateral disarmament:

1. It means that the only people who end up on the Supreme Court are either naïfs or cynics.

2. It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.

3. Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.

The pity is that all of this was probably unnecessary. The Democrats have sixty votes in the Senate. It would have taken some courage for Judge Sotomayor to have told the truth, but not much. She said yesterday that judges should never decide cases out of fear. Yesterday, she testified out of fear. We have a right to expect better of her."

Couldn't have said it better myself. And yet, not only will the 60 Democratic senators shamelessly vote in favor of her nomination, but some Republicans will shamelessly join them.

But as Seidman said above, they probably don't know anything about the law, and to them the official version sounds plausible.

So glad to know that our legislature appoints nominees to the highest court in the land based on a "Sounds good to me!"

 

Comments

[ChunLing]

Well...there's a problem with that. See, American jurisprudence has a very important and fundamental legal concept to rely on in "tough" cases.

It's called the presumption of innocence. What this basically means is that if someone cannot be proven (beyond reasonable doubt) to have performed some action which would adversely affect their standing before the law, then they must be presumed not to have done it. Applying this is not always as simple as looking at which party is the defendant in a case.

A good example would be the now famous fire-fighter's case against the city for denying them promotions. Although the city was the defendant, the city could not plausibly deny that it has taken the actions for which it was being sued. On the other hand, the city had taken those actions in response to an unproved (and not even seriously alleged) racist conspiracy on the part of the fire-fighters and the test designer. The city's actions as a government had transgressed the principle of presumed innocence by assuming a racist conspiracy had illegally influenced the promotion procedure.

A "tougher" case would be that of OJ Simpson. When you look at the deciding arguments of the case, the supposedly "reasonable doubt" that OJ was guilty rested on the merely alleged racist conspiracy of the police investigating the crime scene. Unlike Sotomayor's fire-fighter case, these allegations were made and argued with complete seriousness. Like Sotomayor's case, the decision came down on the side of presuming that there was indeed a racist conspiracy. Unlike Sotomayor's case, the people being accused of this racist conspiracy were the acting under color of the law, and thus the normal presumption of innocence has to be balanced against the more fundamental principle of limiting the power of government officials (which is the justification for the usual presumption of innocence).

At this point, the police accused of engaging in the conspiracy must be disentangled from the government accused of overstepping its legal bounds. Then, one can try the officers under a presumption of innocence, and examine the system for evidence that it operates outside the law. Sadly, this did not happen...at least partly because then OJ would not have been found innocent, which was the point of accusing the officers of a racist conspiracy in the first place. As a result, releasing a criminal to continue to prey on society was considered the rectification for whatever problems may have been present in the police force.

Most reasonable people have a problem with that if they think it over. Which is why correct application of the presumption of innocence is so necessary. It may require decisions which are distasteful or involve substantial administrative costs. It can be tempting to "cut through the red tape" and make "tough" decisions without regard to what careful application of the principle of presumed innocence requires. And, since in the cases of bad actions taken under color of law it mandates separating the accused from official capacities at a reduced standard of proof, it may not be an attractive principle to judges who would like to be more secure in their jobs.

But it remains one of the greatest and most necessary expressions of limited government, that the judge must presume innocence where guilt is not proven. Adhering to this principle takes much power away from judges, but then again that is for the benefit of everyone else.

[Colette Moran]

ok -- I wasn't quite prepared for such a... lengthy comment.

I'm not exactly sure how it fully relates to what I posted -- but it is rather late at night and I'm a little punchy.

Was this something you wrote and then posted at several sites?

I think the whole idea of "reasonable doubt" has been wildy set askew in this country. Perhaps due to outlandish movie and tv plots? Who knows, but OJ is a grand example where it was a slam dunk IMHO. This was after I had thought he was innocent all along, but then watched the summations and realized he did it.

As for the jury's decision on OJ -- I think that the presumed racism of Fuhrman did tilt the jury. But the foreman of the jury claims that the deciding factor was the testimony of the limo driver (who obviously read his clock wrong -- or something). It's just too bad those pix of him with the fancy shoes didn't emerge until the second trial.

[MikeG]

So he is teaching law students that the law should be interrupted with “moral judgments"? Whose morals? Mr. Seidman and the Federalist Society, should be Communist Society’s morals? Wow, we’re doomed.

[ChunLing]

Sorry, I meant to clarify that while the law does indeed leave wiggle room (of practical and moral necessity), the American Judiciary system does not leave it up to the judge how that wiggle room is to be employed.

I have to agree that "reasonable doubt" is wildly out of control, having largely been replaced by the principle of irrational race/class-based certitudes. But "reasonable doubt" is an unavoidable principle in any human judicial system which does not rely on absolute prejudice, whether or not the presumption of innocence is applied. Humans cannot make any kind of judgment with absolute certainty, a philosophical and even theological problem rather than merely administrative issue.

Anyway, while the presumption of innocence is a very simple concept, properly applying it to real cases can be messy and time-consuming. That was part of what I was trying to illustrate with the reference to the famous OJ trial. Even though OJ should have been convicted on the evidence despite the allegations of the defense, those allegations do deserve special attention exactly because they undermine the entire concept of "proof" of guilt. If Fuhrman (what a name, eh?) really was going around manufacturing evidence against black men, then OJ isn't the only one who should have been freed.

If you look at the various elements of the Constitution as well as the statements (and personal histories) of those who drafted it, one comes to the inescapable conclusion that they rather intended for the legal system to be only a first resort. Modern Americans feel differently. But if the presumption of innocence is to be replaced as the decisive factor where the law is not perfectly clear, then another similarly universal basis for deciding such cases has to be found. Making every case a matter of who looks more like the judge might be simple, but it's a recipe for race war.

[Colette Moran]

Well said -- thanks so much for your comments!

[ChunLing]

Not at all, thank you for reading them. I have a tendency to be...abstract, after all.

[james]

Um, yes thanks, but we do not need a "brilliant" law professor to see SS is a mediocrity.