Thursday, August 06, 2009

Sotomayor Should be Confirmed

The Senate is expected to confirm Judge Sotomayor to the US Supreme Court later today. I believe this is the right decision.

I say this not because I agree with Sotomayor's rulings or legal philosophy. I have reservations about both. Republicans are right that an 'empathy' standard is a dangerous one, because it converts preferential identity politics into a legal posture. Justice, even in principle, would no longer be blind, and even in principle, litigants would not be operating on a level playing field. If judges and justices were to embrace such a standard, chaos, followed by Nietzchean will to power, would define justice in America. Why? Because individual empathies inevitably conflict with each other. My empathies may be different than yours. Who gets to decide which empathies become ensconced in jurisprudence? Are such empathies routinely up for debate and significant change over time, and if so, how would citizens, governments, and businesses ever be able to know they are on solid legal ground when making decisions that might impact anyone else? In such a scenario, justice would be governed by fluid preferred empathies at any moment in time, and freedom and even the ability to govern would be thoroughly compromised through judicial enforcement of ever changing and ever conflicting empathies. At that point, the judiciary itself would lose its function, because its role would overlap completely with the political role of the executive and legislative branches. Put simply, we don't need the judiciary to prefer certain policies, groups, or worldviews over others - we have politicians to do that. We need the judiciary to be a check against the inevitable abuses that result from such politics, rather than a judiciary that signs on to such a practice and becomes duplicative and redundant as a result.

Having said all of that, I nonetheless think Sotomayor should be confirmed.

First, elections have consequences. Barack Obama is the president, he won the election fair and square, and he won by a sufficient enough margin to legitimately claim a mandate for his outlook on governance, including his criteria for judges. It doesn't matter that when he was a senator, he did not embrace the same standard in voting against qualified nominees of the previous administration. If one thinks this standard is right when we like the nominee, it doesn't become wrong when we're less enthused about a nominee.

Second, Sotomayor is clearly qualified. Her legal credentials are strong, and she's obviously not a minor league judge. It doesn't matter that when he was a senator, Obama voted against nominees who were also clearly qualified and had impeccable legal credentials. This standard should be a fixed standard that applies regardless of the nominee.

Third, Sotomayor is more or less in the legal mainstream. This is very dicey. During the Bush years, people like Chuck Schumer routinely threw around the term 'mainstream' in judging the fitness of nominees, as if there was some universal agreement about what 'mainstream' meant. Schumer's idea of 'mainstream' is very different from mine, and often varied depending on the day. This resulted in a completely subjective, arbitrary, and politicized standard that became THE standard upon which nominees were judged. It was a farce from start to finish, and it was a farce that then Senator Obama willingly engaged in. But in the case of Sotomayor, it is not easy to build a strong evidential case that she's a legal loon. Very few of her decisions have been reversed (the New Haven case being a glaring exception). While this doesn't guarantee a mainstream outlook, on the surface at least, it probably does imply a certain mainstream.

Fourth, the 'empathy' thing is very concerning, but not a showstopper given Sotomayor's record. Let's be clear that the 'empathy' standard is Obama's. During her hearings, Sotomayor thankfully seemed to reject such a standard, repeatedly. And with the possible exception of the New Haven case, there is little in the record to indicate that in contradiction to her Senate testimony, Sotomayor has in fact embraced empathy as a legal philosophy that influences or even dictates her legal decisions. Even if one considers the New Haven case, which I agree with Republicans was a terrible decision that was rightly reversed by the Supreme Court, it is not clear that Sotomayor took the 'empathy' route in signing on to the bad decision. The decision itself was a summary decision where the court didn't offer a rationale for its decision. So there's nothing in writing to indicate why Sotomayor and the other judges decided the way they did. During her testimony, Sotomayor cited precedent as the legal basis for the decision, not empathy or preferential group politics. One can either believe her explanation or not. Frankly, I don't know. Her out of court statements regarding identity wisdom may in fact be what she believes (though she rejected this in her testimony), and if so, this is unfortunate. But I simply fail to see enough compelling evidence that such a standard has been front and center in the judge's legal thinking.

Fifth and finally, someone's disagreements with a judge's decisions should not automatically provoke a nay vote. There isn't a single judge in America who I would completely agree with. Does that mean that if I was a senator, I would vote 'no' every time I disagree with someone? That simply can't be the basis upon which to shape the judiciary. The judiciary needs to be loyal to the law, not to me. I understand that loyalty to the law is a variable thing since there are many understandings of what that means. But in the case of Sotomayor, her Senate testimony made her loyalty to the law clear, and her legal history doesn't deviate from this enough for me to vote nay.

I respect those who see this differently and believe she shouldn't be confirmed. I share many of the concerns of those who oppose her confirmation. But in the end, I can't and won't adopt many of the specious 'standards' adopted by Democrats in opposing Republican nominated judges. Sotomayor should be confirmed.