News Flash: She's a Judge, Not a Philosopher

We are at the "Tower of Babble" stage of the Supreme Court nomination/confirmation process; that place where the pundits and talking-heads are slicing and dicing Judge Sonya Sotomayor's opinions and speeches for some indication of her "judicial philosophy."

The latest such pieces I've read are in the Wall Street Journal's law blog, which sent me to Jeffrey Rosen's analysis for TIME.

Rosen says:

An examination of Sotomayor’s career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed.

Given than Rosen had previously quoted unnamed sources as saying that Judge Sotomayor was “not that smart and kind of a bully on the bench,” this revised opinion is well, "more nuanced and complex" than Rosen's earlier piece.

But wait, there's more. In the TIME article, Rosen writes:

[Judge Sotomayor] appears to be an incrementalist rather than a radical of any stripe. In a survey of Sotomayor’s 226 majority opinions, Stefanie Lindquist, a law professor at the University of Texas at Austin, found that only 38% could clearly be characterized as liberal, while 49% could clearly be considered conservative. When the criminal cases (in which appellate judges are encouraged by Supreme Court precedent to be relatively pro-prosecution) are taken out of the mix, Sotomayor’s record looks about 46% liberal and 36% conservative.

* * * *

But it’s in dissents rather than in majority opinions that appellate judges often reveal their true feelings. Of Sotomayor’s 19 published dissents, only three dealt clearly with racial issues, and they pointed in different directions. Sotomayor does not appear to be an outlier in race cases, although she seems to have no overarching theory about how to decide them.

I've got news for Rosen and the WSJ: Sonya Sotomayor is, well, a judge. Judges decide the cases they have before them, in a sincere (we hope) effort to apply existing legal principles to new fact situations and thereby to resolve disputes. So why, even in dissent, would it matter that Judge Sotomayor's opinions on racial issues "pointed in different directions" and that "she seems to have no overarching theory about how to decide them?"

We liberals can hope that Judge Sotomayor's sympathies lie with the left-out in this country (what the prophets called "the poor and the oppressed"). But we should not expect that she has any "overarching theories" that account for her past opinions.

And lest anyone thinks this is an anachronistic or reactionary position on my part, I would remind you that Justice Brandeis coined the phrase "judicial restraint" and the epithet "judicial activism." Judges do "make law," of course. In our Anglo-American judicial tradition, we recognize that existing legal principles do not solve every case, and therefore have to be changed and molded to meet new issues. We also know that the Framers wrote the Constitution (and the first Congress the Bill of Rights) in self-consciously abstract language (e.g., the prohibition against "cruel and unusual punishment"), so that the original Federalists (John Adams and John Marshall) could use the power of judicial review to apply the language of the document in new and even unforeseen ways.

But for judges to function in a democratic system of government, they must, at the end of the day, allow the people to be sovereign. That means having respect for legislative and executive pronouncements, and also for precedent set by other judges. "Judicial restraint" in the common-law system means that judges "triangulate" the views of the elected branch of government, the precedent of earlier judicial decisions, and the abstract values of the Constitution. It is a fabulous, practical exercise in process philosophy and philosophical idealism (cf Whitehead, Hartshorne, Hegel, Royce) -- but it does not involve the mechanical application of a "judicial philosophy" to make edicts by judicial fiat.

So three cheers for Judge Sotomayor's "incrementalist, nuanced" approach to cases. And three raspberries for the legal pundits. Get a life, guys.