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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Just How Important is Judicial Temperament ?

During the confirmation process of Sonya Sotomayor the question of "Judicial Temperament" has come up. This seems like one of the weakest criticisms i have ever seen for a potential judicial nominee. There are several reasons for this but the one i think is most salient is that the activity where the "temperament" is most relevant is least important in the appeal-- oral arguments.

This Washington Times piece encapsulates the conservative critiques of her "temperament" begun by the now legendary Rosen piece.

Lawyers who have argued cases before Supreme Court nominee Sonia Sotomayor call her "nasty," "angry" and a "terror on the bench," according to the current Almanac of the Federal Judiciary -- a kind of Zagat's guide to federal judges.

The withering evaluation of Judge Sotomayor's temperament stands in stark contrast to reviews of her peers on the 2nd U.S. Circuit Court of Appeals. Of the 21 judges evaluated, the same lawyers gave 18 positive to glowing reviews and two judges received mixed reviews. Judge Sotomayor was the only one to receive decidedly negative comments.

Judge Sotomayor's demeanor on the bench will be one of the issues the Senate Judiciary Committee tackles when she appears for her confirmation hearing. A lack of a good temperament has been used as a line of attack against nominees in the past - most notably conservative Judge Robert H. Bork, whose nomination to the Supreme Court was defeated.

For a better sourced, more in depth, look at her "temperament" while on the bench see the NYT piece.

The basic argument is that she is very mean to lawyers during oral arguments, cutting them off and not letting them make the point they want to make. This may not be too much fun for the lawyer arguing before the court because most appellate advocates do have some points that they want to make. However, the importance of the oral arguments is greatly overblown when discussing the outcome of the appeal. In fact, in some cases the oral arguments are almost perfunctory or arent done at all. This reason that the oral arguments as important as they are often made out to be is that the heavy lifting, the winning arguments are made in the appellate briefs.

The appellate briefs are supposed to contain all of the best arguments for your position that you can include in the space allotted. This is why you will often hear that cases are won and lost on the briefs. It is only in a minority of cases where the oral arguments make the deciding factor.

In the majority of appellate cases, oral argument isn’t decisive; the
case is won or lost on the briefs. But in a significant minority of cases, oral argument is decisive. Probably somewhere between 10% and 35% of cases on appeal are won or lost on oral argument.

My point is not to say that oral arguments are not at all important or dont matter. The point is that the oral arguments are not the end all be all of a case. There are things that reveal just how important the oral arguments are in the scheme of things, the first is that only the counsel for that parties will be delivering an argument. Compare this with the fact that multiple interested parties are allowed to submit briefs on matters before the court. Just how important can an oral argument be if all of the relevant people arent getting up to speak? Information in an amicus brief could be crucial to the outcome yet entirely absent from the argument. Consider that according to, Oral Arguments Before the Supreme Court By Lawrence S. Wrightsman (preview)- the author of one the most controversial cases in recent memory, kelo v city of new london, john paul setevens wasnt even there for the oral arguments. Similarly, during his battle with cancer Chief Justice Rehnquist missed oral arguments for decisions he penned. Finally where as arguments used to run for days in front of the court, modern oral arguments run for 30 minutes. Briefs used to be -- well -- brief running only a few lines. In addition, not all cases before the Court are argued orally. The court takes about 75 cases a year yet not every case receives an argument. A few every year are decided without it.

One of the other notable things about Supreme Court oral arguments is that really only eight justices will be asking questions. Justice Thomas is known for his lack of participation in the questioning having foregone asking questions since a death penalty case in 2006. Thomas has his own opinion on the merits of oral argument,

"I think that they should ask questions, but I don't think that for judging, and for what we are doing, all those questions are necessary," he said. "You don't have to ask all those questions to judge properly." Thomas compared judging to another profession where debate isn't aired in public. "Suppose you're undergoing something very serious like surgery and the doctors started a practice of conducting seminars while in the operating room, debating each other about certain procedures and whether or not this procedure is this way or that way. You really didn't go in there to have a debate about gallbladder surgery. You actually went in to have a procedure done. We are judges. This is the last court in a long line in our system. We are there to decide cases, not to engage in seminar discussions. Now, each of us has a different way of thinking about things. Some people like to talk it out. Some people enjoy the questioning and the back and forth. Some people think that if they listen deeply and hear the people who are presenting their arguments, they might hear something that's not already in several hundred pages of records."

Thomas said that once the cases get to the Supreme Court, there are no surprises left. "This is not Perry Mason."

Its Justice Thomas' opinion that everyone has already made up their minds before the arguments commence. That should give you an indication about how important he thinks they are and he sits on the Court.

Again, arguments are important in a minority of cases. However, even if Judge Sotomayor is mean she has to share time between the seven other justices on the court. Court of appeals cases are argues before three judge panels meaning one judge has an easier time hogging up the time but the supreme court has seven other people asking questions.

While arguments can be fun and exciting they are not the be all end all of the appellate process. This naturally reduces the importance of the "judicial temperament" individual justices display while on the bench. The idea that anyone should be voting against a potential supreme court nominee because they arent the nicest person on the bench is simply wrong.

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