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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Roberts Court as the Second Lochner Era

In examining some of the recent decisions handed down by the SCOTUS i have to feel like we might be witnessing history. I dont mean the positive jackie robinson breaking the color barrier history but the bad tanks rolling into Hungary kind. The Roberts court has issued and will continue to issue a number of important 5-4 decisions that will gut or otherwise roll back the rights and protections american's believe that they enjoy. The decisions of the Roberts Court will continue to do injustice until kennedy or one of the solidly right wing justices retires. However, the Courts decisions have fallen out of step with the general movement of the population and the Roberts Court will end up looking as out of place during its time as the Lochner Court did preceding and during the New Deal.

I think that it is very interesting that the conservative judicial reign began just as the conservative political reign came to a screeching halt. The political shift of the SCOTUS has been steadily rightward since the beginning of the Rhenquist Court and has reached new hieghts with the Roberts Court. Its almost a cruel twist of fate that we couldnt get rid of Bush quite early enough to prevent him from leaving his lasting impression on the court's balance.

The narrow 5-4 the majority commonly commands has led to several decisions that i think history will not look kindly upon. Included would be, District Attornies Office v. Osborne, Gross v. FBL Financial Services, Davis v. Federal Election Commission, Seattle Schools Case, to name a prominent few. In addition Roberts dissent in Caperton v Massey Coal is another decision likely to elicit criticism for a long time to come. Each of these cases exemplifies Jonathon Turley's description of roberts,

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

The problem of course is that the current Republican Party is incredibly unpopular. By reveling in conservatism Roberts and his conservative cohorts place the court in opposition to the general desires of the population. Lets not kid ourselves either, SCOTUS decisions are often policy based and policies are often a reflection of politics. For example conservatives generally have a deference to authority, a pride in stability, a preference for concrete rules, essentially combining into a formalist approach favoring procedural due process over substantive due process. I think these traits are strikingly evident in two of the above mentioned decisions, Massey and Osbourne.

In his Massey dissent Roberts writes,

Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Roberts makes the assertion that allowing for more claims of bias will undermine the confidence that people have in the judiciary. He seems to be missing the big issue in this case, the fact that a judge sat on the case of a man who spent three million dollars to get him elected. Thats a lot of money in a judicial election where the incumbent lacks real name recognition and the electorate lacks sophistication on legal issues. Its hard to imagine that the money didnt move votes and nobody believes that the judge was impartial. these circumstances are extreme and unique. Yet Roberts has 40 horrible outcomes he predicts will result from the decision. The problem is that in this case, the judge really appeared to be biased and didnt get off the case. IMO TGM's Scott Lemioux has it correct when he wrote that,

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today's ruling. To the extend that today's decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

We see the same disregard for the substantive justice in favor of form and wishful assertion when Roberts denies the ability of a prisoner, William Osburne, to pay for his own dna tests in an effort to show his innocence.

At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

Roberts central assertion here is that if they allow this guy to have DNA testing they have to allow everyone to have DNA testing. That jury verdicts will cease to have meaning because they can be second guessed by DNA. Citizens will think that the system isnt perfect because innocent people get convicted. This assertion is simply wrong. Allowing testing, especially if its on their own dime, will only improve confidence in the system. Allowing the innocent to remain behind bars in order to preserve the system illustrates a commitment to form and procedural due process. rather than substance. The system and procedure must be protected for its own sake instead of being protected because it provides real protections.

Roberts opinion in the Seattle Cases fits this line of thought as well. His oft quoted soundbyte -- "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]" -- exhibits a fundamental rejection of the complexity of racial inequity in this country. To simply proclaim everyone as being equal will not make it so. To provide entirely equal procedural protections wont help if minorities are never in a position to use them. Imagine everyone has to fill out the same forms for a job but the minority cant read the forms and the white people get half the answers from their parents. Same forms and on their face not biased but the minorities are at a huge disadvantage.

Taken together the body of law left by the Roberts Court will be one of the most business, government, wealthy, powerful, friendly in history. All of this goes against what the general public would most likely want. People want the innocent to be let out of jail and they want the judges who receive massive campaign contributions to recuse from the contributors cases. While racially oriented programs are much less popular they served the important purpose of helping to level out a structurally titled playing field. People dont want millionaires to simply be able to buy elections. People generally frown on allowing discrimination against the elderly. The list goes on and on.

While it may be cliche the arc of history bends towards justice and the Roberts Court does not seem to be bending that way. This indicates they are likely to stick out as a Court in opposition to the felt necessities of the time just as the Lochner Court does. The biggest problem is that we are stuck with the 5-4 split until Kennedy retires and a left of center judge is placed in that seat. only then does the court step back from the dismantlement of the warren courts constitutional protections.

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Letting Iranians Lead

The situation in iran is a potential watershed moment in the way America handles the growth of Democracy and freedom on the world stage. An examination of the situation clearly reveals that the right path and correct attitude is the one currently on display by President Obama. American adventures in democratic intervention do not have a strong history of success. The reason for this is that our actions often end up undermining the legitimacy of the people we want to support out of a misplaced sense of superiority and paternalism. We must avoid such displays at this moment in history.

One of the chief flaws in the traditional attitude of America on the world stage is the belief that every internal or domestic matter of other countries necessitates our involvement or pertains to strategic American interests. These beliefs have lead a mindset that requires action. In the minds of some in the US like Bill Kristol, if we arent acting in some way we arent doing the right thing. Take his position on this Iran situation,

And where is the American president? Silent.

Some argue that the brave Iranians demonstrating for freedom and democracy would be better off if the American president somehow stayed out of the fight. Really? But Barack Obama is president. His statement wouldn’t be crafted by those dreaded neocons who vulgarly thought all people would like a chance to govern themselves and deserved some modicum of U.S. support in that endeavor. It would be written by subtle liberal internationalists, who would get the pitch and tone just right. And the statement wouldn’t be delivered by the notorious George Bush (who did, however, weigh in usefully in somewhat similar situations in Ukraine and Lebanon). It would be delivered by the popular and credible speaker-to-the-Muslim-world, Barack Obama. Does anyone really think that a strong Obama statement of solidarity with the Iranian people, and a strong rebuke to those who steal elections and shoot demonstrators, wouldn’t help the dissidents in Iran?

I don’t believe it. I don’t believe Barack Obama believes it. As he put it in The Audacity of Hope: “We can inspire and invite other people to assert their freedoms;...we can speak out on behalf of local leaders whose rights are violated; and we can apply economic and diplomatic pressure to those who repeatedly violate the rights of their own people.”

Kristol makes a huge mistake in either failing or refusing to understand the dynamics of out history with Iran. President Obama was only just recently able to acknowledge our role in the overthrow of mossadegh.

The crushing of Iran's first democratic government ushered in more than two decades of dictatorship under the Shah, who relied heavily on US aid and arms. The anti-American backlash that toppled the Shah in 1979 shook the whole region and helped spread Islamic militancy.

After the 1979 revolution president Jimmy Carter allowed the deposed Shah into the U.S. Fearing the Shah would be sent back to take over Iran as he had been in 1953, Iranian militants took over the U.S. embassy - where the 1953 coup was staged - and held hundreds hostage.

If there is anywhere in the world that American interference or support for one domestic group or another is counterproductive it is Iran. Kristol seems shocked that merely expressing support for the anti-ahmadenijad crowd will cause problems. He shouldnt be. Hilzoy passes this on,

"When my student bemoaned the cautiousness of Obama administration's statements, his brother confirmed one aspect of Spencer Ackerman's account of the administration's behavior, saying that government forces are already accusing protesters of collaborating with the U.S., and that protesters are actually worried that Obama will make an explicit show of support, as that would restore some credibility to what the government has said about the election and, more importantly, could undermine a reform coalition in which some factions are none-too-fond of America."

This is an Iranian domestic matter. If we want the reform movement to succeed it must maintain credibility. It will not have any credibility if the hardliners manage to portray it as a repeat of the mossadegh coup in 53. Instead of barging into a delicate domestic situation where even our words can cause damage we should refrain and instead we should listen and let the Iranian people take the lead.

Letting the domestic populace choose their own path and destiny instead of forcing one on them is the surest way to establishing an effective relationship with Iran. Only when the Iranian people make their wishes clear in regards to our actions should the US act at all. If the Iranian people need something from us they can ask. It is a sign of respect to allow a country to work out its own problems without believing you can solve it better than they can. It is -- after all -- their country.

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