Sotomayor and the Lack of A Liberal Philosophy

Its hard to blame Judge Sotomayor for not giving a long drawn out lecture on the nature of the American Appellate system to the Senators who asked her questions. She after all really wants to be on the Court. It is clear that at this point in time simply keeping your mouth shut and letting the Senators talk about themselves and their views is the easiest way to be confirmed.

You can search around the bloggosphere and see the disappointment in liberal circles that sotomayor failed to articulate any meaningful liberal view of the role of the judiciary in American Society. This is true. We didnt here about the constitution as an illustrative document of principles that are applied to current situations. Instead we heard plenty about restraint and open mindedness. We heard that the Court, contrary to everyone elses understanding, doesnt make policy.

The only time we might see an honest discussion about how the courts in this country operate is if we get someone up there in the hearings who doesnt care about being confirmed. Imagine someone simply going up there and telling it like it is. That the Court makes policy, edits and rewrites law.

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Sotomayor Comfirmation Hearing is Pretty Boring

Im trying hard to get worked up about the sotomayor confirmation hearing. I really am. Sadly though i just cant. Dont get me wrong im very excited to see a latina woman appointed to the court and even though id like to see more liberalism from her she isnt the worst choice ever. My problem is with this entire confirmation hearing process. Does it really serve any point? Are we learning a tremendous deal about Ms. Sotomayor? Are we learning a great deal about the Senators from the questions they ask? I have to say we arent. I mean, we all knew Sessions was a racist before the hearing and that Lyndsey Grahm didnt like Roe. The entire process is congressional theater write large. Right now everyone is playing their part and reciting their lines.

In today's media environment the second that Ms. Sotomayor became the frontrunner for the nomination she and her record were placed under a brutal media spotlight. Her 17 year history on the bench provides ample evidence for the type of justice she would make. If you really want to know how she thinks, her philosophy, whether she ignores law and precedent all you really had to do was to read her opinions.

The thing is, many people have. Ms. Sotomayor is not a mystery. She hasnt been plucked from obscurity with nothing written to examine. This makes me less interested in the hearing. We know by now who she is. She is an overall center left judge. She hasnt been willing to make bold leaps in the law or to use the law as a tool of social reform.

Another thing that makes this confirmation hearing boring to me is the fact that it takes place under a cloak of disingenuousness that affects every aspect of SCOTUS discussion. One aspect of the problem is that people act like understanding the law and making appellate rulings is easy and straightforward. its clearly not. Its hard and hyper-technical in most instances. The attempt to simplify the job and process of a Supreme distorts the discussion but most people cant follow hyper technical discussions of the law and that wouldnt look good for the politicians on tv to be over the head of their constituents.

The AP put out one of the strangest anti-Sotomayor pieces today that makes my point. It comes with the headline Columnist: Sotomayor is no Sandra Day O'Connor. In it the conservative espousing his views stated,

Q: How do you think the regular people, especially Republicans in red states are viewing the hearing?

A: I think most people get very confused in these proceedings because it gets so technical. I think they size up the person.

I'm sure most Republicans who look at her, would think she's not the best nominee. But what do they expect? Obama won. I would have liked him to pick another O'Connor. I don't see her at all being a Sandra Day O'Connor and going back and forth and helping the court find the center. Kennedy is the only justice who does that, and that's a shame. I'd like to see more justices who could help us find the center in a center-left era. I don't see Sotomayor being that person, but I may be wrong.

The era may be center left but the current Court sits far to the right. A judge who sides sometimes with Alito, Scalia, Roberts, and Thomas jusnt isnt likely to side often with the more liberal wing of the court. Its like asking obama to nominate a conservative to the Court.

The entire attitude of the hearings is wrong. its filled with "how would you rule in this case" type of questions. It really needs to focus on judicial philosophy. Thats a discussion that the American public could probably track and might find interesting. The problem is that Sotomayor simply avoids all of these real questions so that she isnt hurt politically. One excellent example cited by Jan Crawford Greenburg

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendments. It is a process -- an amendment process that is set forth in the document. It doesn't live other than to be timeless by the expression of what it said. What changes is society. What changes is what facts a judge may get.

That’s nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn’t be that difficult to knock it out of the park.

Obviously, Sotomayor can't answer questions about how she would rule on issues that might come before her, so it's a different point than sounding like Roberts on those answers. But it's her responses on theory, the sweeping questions of philosophy that are frustrating liberals like Seidman.

“One of the things she said that was striking yesterday was 'judges should never decide cases out of fear.’ But her testimony came out of fear,” Seidman told me this morning. “It doesn’t speak well of her.”

And with a decisive majority in the Senate, “it doesn’t take a lot of courage,” Seidman said. “It takes only a little.”

Exactly. Lack of courage on her part and a lack of spontanaiety on the Senators part and total predictability by the village adds up to make these hearings boring and rather useless.

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Ricci and the Courts Race Neutral Desires

By now im sure those who read this are well aware that the SCOTUS reversed the lower courts decision in Ricci v. DeStefano. The Ricci decision couldnt have been all that surprising given the result of the Seattle Schools Cases. Its clear that at this point in time a majority of the court is of the belief that racism has been largely solved in this country, at least as it pertains to overt acts of discrimination in employment. Ricci sits squarely at the center of the conservative view that race conscious measures are simply not acceptable.

Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." cite link

The problem of course is deciding what "a strong bases in evidence means". The Court shifts the traditional burden from one on employers to show they weren't discriminatory to a new burden on those who fear disparate impact suits to explain why the disparate impact arose. Marcia McCormick, who blogs at Workplace Prof Blog explains

The majority’s legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decision making which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual’s race. . . .

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It’s also an implicit rejection of the basis for the Court’s early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system. (emphasis added)

This is a very old fight. The question of whether the problem between races in our society is in the people or structural. Liberals find the problem to be structural, poor education, lack of a nurturing environment etc. The difference is that the conservatives now have a majority of the Court. The conservatives now have the ability to impress the ideology -- the theory of race -- that they hold onto reality. As much as i would love to believe that we are beyond race and that everyone has an equal start at this point in time that is simply not the case.

The failure to accept that there are structural inequities that have created minority underclasses and that creating this underclass is a negative for America is problem. Conservatives have a view that everyone operates as individuals and that the creation of the poor minority underclass has no effect on them or their lives or the greater future of America. This clearly isnt true.

Simply put, to maximize the potential of the American population we cannot allow a permanent poor minority underclass. Its a waste of talent and resources. As a country we need doctors, nurses, scientists etc and we need more and more brain power to compete in a global economy. What sense does it make to restrict actions in such a way as to prevent us from closing achievement gaps and increasing equality in our society?

I would prefer to carry out most of affirmative actionesque policies on an economic basis but its not always going to be convenient or helpful to do so. Cases of employment discrimination where minorities arent able to advance because of ostensibly neutral tests that create disparate impacts are such instances. If you have a test that consistently allows white people to advance over minorities by huge margins there are only a couple of possibilities for this. One is that the white people are simply better for that job. another is that there is something in the test that is advantaging whites. If whites were consistently better for the job wouldnt we need to specifically target the minorities to rectify what was making them so much worse on the test? Conservative reasoning about race conscious policy would seem to suggest that we cant. We should continue to let the minorities fail to advance and the whites to succeed and that no problems come from this. The SCOTUS probably agrees with that right now.

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