Analyzing The Sotomayor Supreme Court Nomination

President Obama has picked Judge Sonia Sotomayor of the Second Circuit as his nominee to replace David Souter as Associate Justice of the United States Supreme Court. Judge Sotomayor was considered the front-runner for the spot, along with Judge Diane Wood, Homeland Security Secretary Janet Napolitano, and Solicitor General Elena Kagan.

Ilya Somin has a detailed critique of Judge Sotomayor’s record and finds her minimally qualified. As he puts it:

…[H]er record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee’s qualifications are likely better than Harriet Miers’ were; but Miers’ nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor’s.

It would be hard to find a less qualified nominee than Harriet Miers, but Sotomayor does not strike me as a strong candidate. She is, to be sure, qualified for the position, but a seat on the Supreme Court is the pinnacle of the American legal profession. The Supreme Court has housed some of the greatest minds in the practice: Oliver Wendell Holmes, Felix Frankfurter, Hugo Black, Robert Jackson, and even the current Court has incredibly talented judges such as Stephen Breyer (on the “left”) and Antonin Scalia (on the “right”). Does Sotomayor match up with those legal minds? Her record, at least on a cursory glance seems to suggest not.

Judge Sotomayor is not widely considered to be an expert or leading light on a particular field of law, as Stephen Breyer was in administrative law. She has not shown the intellectual caliber of someone like Antonin Scalia or Ruth Bader Ginsberg. Instead, she seems to have been picked because she is a female Hispanic with an interesting life story that meets the basic qualifications.

Now, that is not to say that Judge Sotomayor is an intellectual lightweight—generally one does not get nominated for a Circuit Court of Appeals or even graduate from a top-tier law school without possessing a strong intellect. Moreover, Judge Sotomayor is no less qualified than the Justice she is replacing—which is damnation by faint praise given that David Souter was the least intellectually gifted and least competent member of the Court.

It should not be surprising that Obama picked a left-wing candidate. That part was a given. President Obama was not going to pick out a candidate more conservative than the decidedly liberal Justice Souter. Her personal ideology should not be at issue: Justices Breyer and Ginsberg were both strongly liberal judges, but were well-qualified nominees whose nominations were consented to by the Senate in a bipartisan manner.

However, as Prof. Somin adeptly points out, her judicial philosophy is a legitimate reason for combatting her nomination:

I am also not favorably impressed with her notorious statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.

The role of a judge is to dispassionately and fairly apply the law without preference or bias. It remains an open question whether Judge Sotomayor will follow the law or undermine the rule of law by giving preference to those based on gender, race, class, or her own personal feelings. If it is the case that she will, respect for the rule of law demands that the Senate refuse to consent to her nomination.

Judge Sotomayor was not the worst pick that President Obama could have made (Secretary Napolitano was the least qualified of the four contenders), but Judge Sotomayor was not as qualified as Judge Wood or Elena Kagan. However, politically, Sotomayor may be the more confirmable.

In the end, President Obama could have picked a legal heavyweight—but instead he picked someone based largely on personal rather than judicial qualities. Judge Sotomayor may be qualified to sit on the Court, but it is unlikely that she will be one of its brightest stars. Given that she is replacing the execrable Justice Souter, it is hard to see her being any worse. Still, there are liberal candidates, and liberal female candidates that President Obama could have nominated that would be stronger picks for the Court. It is likely that Judge Sotomayor will be confirmed, and probably on a bipartisan basis, but she is not the kind of distinguished jurist that will make a strong contribution to American jurisprudence. She will, however, be a reliably liberal vote on the Court, which seems to be President Obama’s primary criterion for picking a nominee.

Gitmo And The Question Of Terrorist Detainees

Jeffrey Toobin has a lengthy examination of Guantánamo Bay and the detention of people caught in Iraq and Afghanistan. The legal battles over the status of detainees continue, as the Supreme Court is set to release the latest opinion concerning detainee rights in Boumediene v. Bush sometime in the next few months.

The real question is what we do when and if Gitmo is closed down. Giving members of al-Qaeda access to US civilian courts does not at all work. A terrorist suspect cannot be given the same rights as a civilian criminal—it’s unworkable to argue that they should have the right to confront their accusers when their accusers might be deep-cover CIA agents actively working against al-Qaeda. There’s a quantitative difference between the sort of evidence used in a criminal trial and the evidence gathered on the battlefield. We certainly don’t want to reduce the standards for civilian trials to the level of evidence gathered on the battlefield—but it doesn’t make any more sense to demand that our armed forces play CSI on the battlefield.

It’s tempting to give these suspects over to their home countries—but if human rights are a serious concern, that would hardly be a good idea. Someone who is deported to a place like Algeria or Saudi Arabia won’t have to worry about waterboarding being torture—instead they’ll likely end up being tortured to death or at the very least treated far worse than they are at Gitmo. For all the hyperbole about Gitmo being “the Gulag of our times” that diminishes the real horrors of the average Third World prison where waterboarding is just the appetizer.

Toobin believes there may be a solution for this problem:

Even if the commissions can somehow begin, the larger question of what to do with the remaining detainees is, for now, unsettled. One response to that quandary is a controversial proposal, by the law professors Neal Katyal and Jack Goldsmith, that is attracting a great deal of attention in the small world of national-security law—and which may offer an electoral lifeline for the Republicans this fall.

Katyal and Goldsmith make unlikely allies. A law professor at Georgetown and former Clinton Administration official, Katyal won widespread renown when he argued and won Salim Hamdan’s case before the Supreme Court in 2006. Goldsmith is a former Bush Administration official who, despite leaving the government in 2004, in part over concerns about civil liberties in the war on terror, remains a strong national-security conservative. (He is now a professor at Harvard Law School.) But the two men shared a conviction that both military commissions and ordinary criminal prosecutions would be impractical for a few of those captured on distant battlefields. Together, they came up with an alternative: a national-security court.

According to their proposal, which was recently the subject of a conference sponsored by American University’s Washington College of Law and the Brookings Institution, sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible—so government agents could testify about what informants told them—and there would be no requirement for Miranda warnings before interrogations. Some proceedings would be closed to the public. “It’s a new system that’s needed only in extreme circumstances,” Katyal said. “It’s not a default option.”

Not surprisingly, civil libertarians do not like the idea. The problem is that their preferred solution of going through civilian courts simply does not work. Terrorism is not a crime, nor is it like ordinary warfare. Rather it is something that is sui generis, a category all to itself. Treating terrorism like a crime does not work, nor are terrorists properly “combatants” as defined by the Geneva Conventions. (The term “unlawful combatant” is not a term invented by Bush Administration lawyers but one that is inherent in international law.) The laws of war allow us to keep these people off the battlefield for as long as there are active hostilities—which in this war is not a definite term.

The overheated rhetoric from the civil liberties groups doesn’t help. Gitmo is not a “gulag” nor is it some legal black hole. We as Americans face a difficult problem that requires creative thinking—and instead we have the Gitmo issue being used as a political talking point. If we close Gitmo, we had better have a viable solution for what we’ll do with the people being held there. Trying them in civilian courts is not a viable option, nor does it seem likely that the Supreme Court will allow for the current system. At some point, there will need to be a compromise, but that will require all sides to work together rather than merely pointing fingers at each other.

Barack Obama And The Rule Of Law

Stephen Bainbridge notes that Sen. Obama doesn’t exactly get it when it comes to the rule of law. The basic principle at stake here is this: judges are supposed to say what the law is, not what they think it ought to be. The function of a judge is not to act as a legislator who gets to change social policy based on their own values, but as an adjudicator. Chief Justice Roberts put it best during his confirmation hearings:

“Judges are like umpires. Umpires don’t make the rules; they apply them,” said Roberts. “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

Sen. Obama does not apparently share that view. Here’s what he said about the type of judge he would nominate:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

That’s precisely the wrong way to pick a judge. There is a reason why the statutes of Lady Justice has her wearing a blindfold—the law should not discriminate based on how sympathetic a defendant or a plaintiff is. It is not the position of a judge to decide that someone should be treated differently under the law merely because of the color of their skin or their social disposition. We are nation of laws, not of men. The law applies equally to all, and should not be subjugated to social whim, no matter how well-intentioned.

The problem that Sen. Obama has is that he really should know better. He knows what upholding the rule of law is about. His remarks on the nomination of Chief Justice Roberts show his two-faced approach to the law. He begins by saying this of Chief Justice Roberts:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

This is exactly the way one should evaluate a judge. A judge should be respectful of precedent (if not inflexibly respectful), modest in the course of statutory interpretation, respect procedure, and be impartial. By these criteria, there is no question that Chief Justice Roberts is quite deserving of his seat on the highest bench in the land.

Of course, Sen. Obama didn’t vote for Chief Justice Roberts when his nomination was brought to the floor of the Senate. His reasoning why betrays his fundamental misunderstanding of the rule of law:

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

This could not be more wrong, but to give Sen. Obama a fairer hearing, let us examine his deeper justification for this position:

On those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

On the surface, this seems perfectly reasonable: after all, we don’t want our judges to be heartless, do we? Yet this country is a nation of laws, not of men. What Sen. Obama wants in a judge is a judge that will take his or her own personal feelings as the deciding factor in a case. This is not following the rule of law, this is an example of a judge discarding the law and becoming something other than a neutral arbiter. This inevitably creates an imperial judiciary in which our government ultimately comes down to the personal feelings of 9 individuals rather than democratic process. This sort of attitude is deeply corrosive to the rule of law in this country.

It is not the job of the judiciary to judge based on their feelings. It is an invitation to judicial arrogance. There is a reason why affirmative action is offensive to the Constition—it is because the Constitution was not designed to allow for government to discriminate on the basis of race and is why the Bakke line of cases are wrong as a matter of law. The Constitution does not create a right of privacy in terms of reproductive rights. Roe struck down the laws of 30 states, yet nowhere in Roe is their any clue as to what part of the Constitution these statutes actually offended. Roe is wrong as a matter of law. The Commerce Clause was never designed to allow the federal government to sweepingly regulate anything even “tangentially related” to interstate commerce—unless you forget that the Tenth Amendment says the exact opposite. The Court in Darby Lumber declared the Tenth Amendment to be a mere “truism” that had little force of law. The Court in their more recent Commerce Clause jurisprudence got it right. Cases like Lopez and Morrison got it right as a matter of law—the Commerce Clause does not grant the federal government the power to regulate any activity even if it has even the most tenuous link to interstate commerce. To accept the rule that Sen. Obama would lay down would be to destroy the very notion of federalism, as there’s practically no activity which could then not be regulated by the states.

If Sen. Obama thinks that these conclusions are wrong, then the judges he nominates should come to a legal reason why these conclusions are wrong and these precedents should or should not be followed. The question should not be answered by stating that the judge simply doesn’t like the answer and is personally motivated to do other than what the law commands.

The “critical ingredient” is not what’s in a judge’s heart, but what is in their head. A judge cannot simply say that because a statute may be ambiguous that they can then reject the rule of law and decide the case based on whatever they want. A judge must have the modesty to accept that it is the Congress, not the judiciary, that makes law in this country, and if Congress comes to answer that a judge doesn’t like, then Congress must fix it. A judge that decides that they want to shape the law based around their whim has failed their first duty as a judge and is no longer a neutral arbiter, but has become a party to the litigation. When that happens, equal justice under the law has been denied.

Sen. Obama could not be more wrong on what makes a good judge. He would subjugate the rule of law to the whim of judges. A former professor of Constitutional Law should be far more circumspect. A judge may rely on precedent, tradition, the common law, public policy and a whole host of other considerations in coming to a legal conclusion. However, the second we start letting judges interject their own “hearts” into the issue is the second we abandon the our democratic values in favor of the Imperial Judiciary. Sen. Obama is simply wrong.