More Republican Judicial Clowning
According to the Politico, Senator Orrin Hatch (R-UT) is already expressing his concerns about potential SCOTUS nominee Sonia Sotomayor:
The entire video clip can be found here. The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).
There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.
But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.
Undoubtedly conservatives will point to Sotomayor's reaction to her own words as evidence that she was letting slip some secret about how liberal judges actually operate. But the obvious truth is that she was merely anticipating that some clown like Orrin Hatch might someday twist her worlds to mean something they don't. She was talking about how all judges operate at the Court of Appeals level. If you're not thinking about the policy implications (i.e., the precedential effect) of your rulings, you're not doing your job.
Sen. Orrin Hatch (R-Utah) said Thursday that Judge Sonia Sotomayor’s past statement that the “court of appeals is where policy is made” would be a problem for her if she were nominated for the Supreme Court.Of course, because this is a Politico article, we're provided no context regarding the actual statement itself. He's referring to this video clip:
“That's a problem,” Hatch said during an interview on Fox News after being shown a clip of the Second Circuit Court of Appeals judge’s comment.
“She would have, I think, a more difficult time if she was nominated because of statements like that, and, of course, she has a whole raft of opinions that I think would have to be scrutinized very carefully,” he said.
The entire video clip can be found here. The context, as Orin Kerr helpfully explains in this post, is that Sotomayor was explaining the differences between clerking at the District Court level and clerking at the Court of Appeals level. Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).
There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.
But in Simplistic Republican World, none of this actually happens. Good conservative judges don't "make policy," they simply enforce the law. The law is apparently always clear. Indeed it's a wonder that lawyers even bother to appeal cases in the Fourth Circuit. After all, they should know that the conservative jurists in that circuit will simply "enforce the law" (because they wouldn't dream of "making policy"), so the outcome should be very predictable.
Undoubtedly conservatives will point to Sotomayor's reaction to her own words as evidence that she was letting slip some secret about how liberal judges actually operate. But the obvious truth is that she was merely anticipating that some clown like Orrin Hatch might someday twist her worlds to mean something they don't. She was talking about how all judges operate at the Court of Appeals level. If you're not thinking about the policy implications (i.e., the precedential effect) of your rulings, you're not doing your job.
posted by A.L. at 2:53 PM
22 Comments:
as usual, al, your analysis is spot on. its an amazing thing what you can do with words; this kind of liturgical action by the partisan hacks over on the right is business as usual.
AL -
I'll just second what Anon said. I'm not a lawyer, so I appreciate your explanations legal matters.
AL- no doubt Judge Sotomayor did not mean to make a damning admission against interest, and Orin Kerr’s benign explanation for her statement is certainly reasonable.
But this is really beside the point because, whatever Sotomayor meant by her statement, the fact is that if she is appointed to the Court she is likely to make policy in a sense that many Americans will find deeply problematic. You have provided us with the perfect example when you predicted that the Court would find a constitutional right to gay marriage within the next ten years. Presumably, therefore, you believe that Sotomayor is likely to vote in favor of such a right (although she is unlikely to admit that to the Senate).
I suppose that you may say that finding a right to gay marriage is not improper judicial legislating, but merely one of those cases in which judges clarify the “gray areas of the law.” I know this is something that liberals often assert, but I wonder if even they actually believe it. Regardless, I doubt that many Americans find this distinction persuasive or even comprehensible.
So you can call Senator Hatch a “clown” if you wish (glad that you eschew “pointless demonization”), but all he is doing is noting that Judge Sotomayor’s statement will be a problem for her because it will cause many Americans to believe that she will engage in judicial decisionmaking of this kind, which you must admit that she very likely will.
MLS,
My point was that she was only making a descriptive (not normative) claim about how the system works.
There's no question that she will "make law," whether on the 2nd circuit or the Supreme Court. But guess what, that's what all judges do. Conservative like to pretend that liberal judges make stuff up while conservative justices don't. That's hogwash and you know it. Conservative justices have been incredibly busy expanding the 2nd Amendment lately. And if they'd also like to expand property rights (see Kelo). It's absolutely no different. Just in the last two years, the Roberts Court has issued a number of decisions that changed the state of the law significantly.
Conservatives rail against "judicial activism" but engage in it every bit as much. And I don't begrudge them that. That's what judges do. But spare me the sanctimony.
A nit: I think you mean "precedential"
Thanks for your thought-provoking posts and your unabashed reclamation of the word liberal!
AL- I don’t know where you got “sanctimony” from my comment, much less from Senator Hatch’s remarks. What I said was that there is very good reason to believe that Judge Sotomayor would make policy in a sense that the American public finds troubling, and I gave the gay marriage as an example.
Your response seems to be that all judges “make stuff up” and that there is no difference between making up a right to gay marriage and making up a debatable interpretation of the right to bear arms or other specifically enumerated rights. I have to assume, therefore, that you believe either (1) that there is no line between permissible judicial policymaking and impermissible judicial legislating (save perhaps whether one approves of the result) or (2) that there is a line, but gay marriage falls on the permissible side.
Ok, I respect your right to hold either of these views and to make the case that one or the other is correct. Same goes for Sotomayor. But I don’t see how you can object to a Senator seeking to determine whether Sotomayor believes (1) or (2), or to a Senator disagreeing with her on either of these points.
Now I am sure that you will say that Senators will inevitably over-simplify the discussion to a choice between “making the law” and “applying the law.” No doubt. And if your point were simply that you wish that Senators were capable/willing to conduct the debate on a more sophisticated level, I would whole-heartedly agree. But you seem to find something improper with Hatch merely raising the issue (or simply observing that there is an issue). I don’t see how there could be.
I suppose that there is a third possible interpretation of your position, which is that although a line exists between permissible and impermissible judicial policymaking, all judges cross the line, and Sotomayor is no more likely to do so than other judges. This doesn’t seem to be a very satisfying position, either intellectually or politically. Again, though, if this is Sotomayor’s position, she is free to explain it to the Senate.
mls: i do not believe al maintians any of the positions put forth by you. i belive (and i perhaps wrongly) that he meant that all judges in this arena make policy and no matter if they are right or left this is what they do. i also believe he was not taking a stand on whether or not these precedents are correct, he was merely making the observation that ALL judges (in this case) set precedent. third (and last) the observation then would be that while conservatives act as if conservative judges "enforce" the law while liberal judges "create" the law is disengionous at best and a complete lie at worst.
both sides are interprating the law, period.
-proudliberal
Proudliberal- your comment doesn’t tell me whether you (or AL) think that there is a line between permissible and impermissible judicial policymaking. As far as I can tell, you either don’t know or don’t care whether there is a line, but you are certain that if there is one, conservative judges cross it just as often as liberals. That doesn’t sound to me like a very seriously held position, but if it is your view, so be it. That still begs the question, what would be the problem with discussing the issue during the confirmation hearings for Judge Sotomayor (or whomever Obama decides to nominate)?
Any lawyer (such as Hatch) knows that her statement is entirely true and completely unobjectionable.
Oh oh man, this is going to be an amazingly stupid confirmation battle.
Permissible to whom? Define your terms, please.
Conservatives rail against "judicial activism" but engage in it every bit as much. And I don't begrudge them that. That's what judges do. But spare me the sanctimony.
You're trying to argue against newspeak that conservatives have spent decades and billions of dollars repeating and getting others to repeat until it becomes the conventional wisdom that most people just assume to be true without realizing why. In a previous post you referred to Bork as fringy and out there. This is not possible by this narrative. Conservatives are by definition mainstream and respectable. If they are very conservative then they are distinguished. Liberal on the other hand is equivalent to activist and anything else with negative connotations.
It's the same for media 'bias'. A panel discussion between Rush Limbaugh, New Gingrich and Karl Rove is fair and balanced. Anything less conservative means liberal bias. Liberal and bias are equivalent and redundant terms meaning less than 100% pure conservative orthodoxy and advocacy.
That's all nonsense and it's classic newspeak. The meanings of the words have been twisted and distorted in a way to prevent the conveyance of undesirable ideas. It's a serious problem trying to have a rational discussion when the words you need to use have been changed in such a way as to mean the opposite or deny the existence of the concepts you want to express.
there is very good reason to believe that Judge Sotomayor would make policy in a sense that the American public finds troubling
Here is another bit of newspeak that I've seen used a lot. American is now a synonym for conservative. Ever wonder why anyone who criticizes or disagrees with anyone or anything conservative hates America, while conservatives can wish violent death on more Americans more often then Osama bin Laden and that's considered patriotic? That's easy. Only conservatives count as Americans.
This is a bit less extreme example, but the idea here is that conservatives, being the American public, would object to a certain interpretation of the law. The idea denied is that the American public is not homogeneously conservative and just as many actual Americans would view the legal interpretation as legitimate and just. Those people don't count as Americans so their views need not and should not be considered.
"I suppose that there is a third possible interpretation of your position, which is that although a line exists between permissible and impermissible judicial policymaking, all judges cross the line, and Sotomayor is no more likely to do so than other judges. This doesn’t seem to be a very satisfying position, either intellectually or politically. Again, though, if this is Sotomayor’s position, she is free to explain it to the Senate."
MLS, you're getting closer to reality here. My comment had nothing to do with whether there is a line between permissible and impermissible policymaking. Surely there is. But strongly believe that liberal judges, as a group, do not cross this line any more frequently than conservatives. Further, I do not believe that Sotomayor is under any particular obligation to "explain" herself than anyone else. She has a good judicial record and her comment as a completely noncontroversial descriptive one.
As for gay marriage, I really don't think you have to make anything up to find that current marriage laws violate equal protection. It's a simple, persuasive argument. The very same one the Court used to strike down miscegenation laws.
You can argue that anything "new" is inherent "activist", but by that logic, the Court's recent Second Amendment rulings are just as activist. The Second Amendment was never interpreted that way before, even if it should have been. That's absolutely no different than interpreting the equal protection clause to require marriage equality.
i would have to agree with dread scot.
to mls: the reason i did not touch on permissable v impermissable is because it was not the point at hand, your smart and i think you truly you know that, so i wont chase rabbits for you.
this is not about "asking questions", this is about republicans creating an argument before there is even a pick...the fact is pubs will fight tooth and nail against anything obama does, but they will also fight against what he "may" do. its fucking retarded.
-proudliberal
i was thinking about this last night, mls, and i after the chinese food had a chance to kick in i could think more clearly....
this isnt about activist judges, because no one has been picked yet. before the so-called "short list" came out the pubs were already in sync with the "code words" and "activist judges". they repeated each other verbatum on any media outlet that would listen.
this is BEFORE a single name had been issued. so, the point is is to oppose obama NO MATTER WHAT.
-proudliberal
mls: "Your response seems to be that all judges “make stuff up” and that there is no difference between making up a right to gay marriage . . ."
Ah, A.L. beat me to the punch. It's not a "right to gay marriage- it's a right to equal protection of the law.
You're looking at the issue too narrowly, in the same way that courts used to uphold anti-gay laws by saying, "There's no constitutional right to engage in gay sodomy!" Of course there's not, but there is a fundamental right to be treated fairly by the government--to be treated the same as other people under the law.
Anonymous- if one starts from the proposition that any law which treats people “unequally” and “unfairly” violates the Constitution, then I grant you that laws against same sex marriage are unconstitutional if, and only if, the court considers them to be unfair. The same is true for laws against polygamy, incest, prostitution, and child pornography. In fact, it is true for every law because no law treats everybody the same.
So it becomes critical to find out (1) whether a nominee shares your conception of equal protection and (2) if so, what he or she considers to be “unfair.” I think you would see this very clearly if you were worried that a nominee might strike down laws that you considered to be vital to social well-being (eg, progressive taxation).
Oh, brother. Tell me you're not serious.
"Anonymous . . . . it is true for every law because no law treats everybody the same."
You know that's not what I was talking about. Don't be a strawman-killer. I'm talking about making gay people jump through hoops to get the same rights that straight people get in one fell swoop, with marriage. "But gay people can get all those same rights, if they do power of attorney this, contract that, blah blah blah." See http://en.wikipedia.org/wiki/Rights_and_responsibilities_of_marriages_in_the_United_States for details - over 1000 rights linked to marriage, according to the GAO.
Look. We're talking about equal rights. This isn't about laws treating law-breakers differently, so don't even try to make that stupid strawman argument. You, MLS, and bigots like you, are treating gay folks as second-class citizens. Period.
So it becomes critical to find out (1) whether a nominee shares your conception of equal protection and (2) if so, what he or she considers to be “unfair.” I think you would see this very clearly if you were worried that a nominee might strike down laws that you considered to be vital to social well-being (eg, progressive taxation).
For a follow-up to those here who believe that gay people have no problems having the same rights if they just jump through legal hoops, see the excellent New York Times article: http://www.nytimes.com/2009/05/19/health/19well.html?em
Woman denied from being at her (female) partner's bedside after her partner said, "I'm afraid of dying; please don't leave me." They had power of attorney, medical proxies, and all that crap, but the hospital kicked her out because, well, gay people just don't deserve the rights and privileges that the rest of us would have.
This stuff drives me crazy. I find it hard to believe that people like mls are actually arguing in good faith, and not just playing some conservative intellectual game. How can you not care about people's rights? How can you single out a group to deny rights (not criminals, mls - don't even start) and still consider yourself a good person?
I do not understand the conservative mind on the gay marriage issue.
Dear MLS:
from your post: "[T]here is very good reason to believe that Judge Sotomayor would make policy in a sense that the American public finds troubling, and I gave the gay marriage as an example."
That you and Senator Hatch presume to know the mind of "the American public" is textbook sanctimony: "feigned self-righteousness and piety." Your opinions don't come from an earnest desire to see any America outside of the ideological image you want it to be. For the record, your "sense" of the American public in no way applies to me or anyone I know, liberals or conservatives.
Deploying gay marriage as your litmus test also makes clear that, by all recent polls, you are not in touch with current popular opinion. While many (rightly) express faith-based reservations, many are also unwilling to relegate fellow Americans to second-class citizenship because of this disagreement. To these Americans, this is not about "values" but about respect, a term the GOP has long abandoned.
Professing discomfort with the "activism" of any judge on the Court of Appeals is to express unease that subjectivity is a part of the equation for jurists of all ideologies. Until you locate a truly objective person anywhere on the planet, you have no argument. All individuals are informed by their knowledge and experience, and bringing that to bear is the soul of judicial wisdom. To deny that it should exist is be defiantly naive.
If what Sotomayor said at Duke was honestly assessed, you would have to agree that Hatch is not addressing her credentials, but simply reverting to the reprehensible partisanship he exhibited during the Clarence Thomas hearings. More than Watergate, those hearings destroyed whatever inherent respect the US Senate had in my mind. Senator Hatch became the face of hypocrisy and misogyny with attacks so duplicitous I was surprised he was allowed to cross a church threshold afterward.
I'm always amazed at the fierce refusal of so-called conservatives to acknowledge their own hypocrisy. I believe it is the primary reason for the GOP's cycle of self-destruction. Would that this country would get on with the task of creating a responsible conservative opposition worthy of the name.
It's interesting that you mention Orrin Hatch, because I just read an article on 538 about the vote to confirm Clinton's elevation of Sotomayor to the Second Circuit (she was originally appointed to the federal bench by George H.W. Bush). Hatch was then chairman of the Judiciary Committee and voted to confirm Sotomayor.
In other words, he was for Sotomayor before he was against her.
"You, MLS, and bigots like you"
You called mls a "bigot" so now s/he need not listen to you. Bet s/he is smiling now.
Steve- you seem awfully upset by what seems to me to be a fairly modest proposition, namely that a judicial declaration of a right to gay marriage would constitute policymaking “in a sense that many Americans will find deeply problematic.”
My words were carefully chosen. I did not say that a majority of Americans oppose gay marriage (although the polls indicate that they do). I also did not deny that much, if not all, judging involves a degree of subjectivity that might be termed “policymaking” in some sense.
Is there a clear and objective line between the type of judicial policymaking that is acceptable (or unavoidable) and that which is not? Probably not. Thus, I would submit that, like Justice Stewart, most Americans cannot define where the line is but will know it when they see a judge crossing it. Do you disagree with this point? If so, explain why. Do you think that Americans don’t care about inappropriate judicial policymaking? Or do you think that Americans react to judicial decisions solely based on whether they like the result?
If your position is the latter, I think that you are somewhat mistaken. I say somewhat because I don’t doubt that the immediate reaction to a judicial decision often is based largely, if not solely, on the emotional reaction to the result. If a judge frees a child molester, there is going to be public outrage even if every legal expert in the country explains that this was required by the law.
Nonetheless, I think that over time Americans do react differently to decisions that are perceived as exceeding the appropriate judicial role. There are many judicial decisions that Americans don’t necessarily like, but can recognize as being grounded in specific constitutional provisions that judges didn’t just pull out of the air. As examples, I would cite rulings against prayer in public schools, laws against flag-burning, limitations on campaign expenditures and gun control laws like that struck down in Heller. In each case, there are reasonable arguments to be made that the judicial decisions are wrong, but most people can understand that the judges who issue these rulings are not merely enforcing their personal value system.
In contrast, I would cite the alleged right to an abortion. I would wager that there is not a single person who is opposed to legalized abortion as a policy matter who believes that Roe v. Wade was correctly decided. There are many people, on the other hand, who favor the policy but think that the case was wrongly decided. There is simply nothing in the actual text, structure or original intent of the Constitution to support the result. It is therefore impossible to distinguish the decision from a pure exercise of the majority’s personal values and policy preferences.
I think that the American public, as a whole, would see the prospect of a judicial declaration of a right to gay marriage as an example of the same type of inappropriate judicial policymaking. This is certainly true of those who are opposed to gay marriage, but I suspect that a significant part of those who are supportive or undecided would also be troubled.
If you disagree with my argument, feel free to explain why. However, don’t bother if you are just going to reiterate that “conservatives are rotten people.” You made your feelings on that clear.
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