The current issue of the NYRB has an essay by R. Dworkin on the confirmation of Justice Sotomayor. The greater portion of the essay concerns the content of the hearings, in particular the now well-established practice of nominees and Senators working in tandem to avoid saying anything of interest during or in connection with judicial confirmation hearings. Everybody loves baseball and never a thought about anything anyone has ever talked about or about anything anyone cares about the courts doing. So the now-confirmed justice says nothing intelligent about her judicial philosophy and the Senators ask her inane questions. No different than Roberts or anyone else in a long time. Dworkin thinks this is bad for the courts and bad for political integrity of the country. All that matters happens in the dark of vetting and interviews, and the public is handed a completely ridiculous set of stories about what the supreme court justices do. I agree with Dworkin, and note that it also results in a good deal of outright lying by nominees.
Dworkin is quite restrained on the popular umpire metaphor. It is indefensible, and so silly as to be stupid. A clear sign of intellectual failure. Cases before the Supreme Court are nothing like calling balls and strikes, and there is no intelligible theory of judicial decision-making at the level which could justify such talk. They set the rules, and no umpire does that. But that (ill-tempered rant) is for another day, far off in the future. Although, I do pause here to wonder what happened to all the originalist theory and analysis when the Supreme Court heard more argument on corporate political speech. Does anyone really think that there is an originalist account of the First Amendment that would accord corporations any rights under that Amendment? Really now, will we be giving Microsoft a vote? That also some other day.
What I started off to comment on are two points in the latter portion of Dworkin's essay. About two thirds of the way through, he says:
The main bone the Republican senators gnawed during the hearings was Sotomayor's now famous remark that "I would hope 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." That statement does seem to challenge the myth: if a judge has only to discover the law, and if personal experiences and convictions are irrelevant, what difference could it make whether the judge is a woman and a Latina? It was therefore imperative for Sotomayor, since she had declared that her constitutional philosophy was only fidelity to the law, either to explain away or to abandon her remark. She first said that she meant only that judges should set their personal experiences aside, which appears the opposite of what she had said. Later, on several occasions, she retracted the statement altogether:
My rhetorical device failed. It failed because it left an impression that I believe something that I don't.... It left an impression that has offended people and has left an impression that I didn't intend.
In fact, however, if we substitute "sometimes" for "more often than not," leaving the question open which kinds of cases she had in mind, her remark makes eminent sense. It plainly helps a judge not only in finding facts but in formulating law to be able empathetically to understand the law's impact on people of different kinds. As Justice Ruth Bader Ginsburg told The New York Times, for example, being a woman helps a judge understand the horror of a strip search for a teenage girl.[7] Being a Latina may give a judge a better understanding of the crucial moral difference between racial discrimination poisoned by prejudice and race-sensitive policies aimed at erasing that prejudice. A judge with that understanding would reach a better interpretation of the Constitution's equal protection clause than a judge without it. No wise Latina would miss the obtuseness of South Carolina Senator Lindsey Graham's observation, for instance, that if he had said a wise white man could make better decisions his career would have been destroyed.
The first part of this is, if meant literally, inane. The second is obviously wrong. To suggest that sometimes members of one demographic make better decisions than members of some other demographic -- sometimes the latian gets it right and the Anglo man gets it wrong and sometimes it is the other way around -- is not "eminent sense," it is trivial and embarrassingly obvious. The only one to dissent is someone who thinks some such demographic is always better (or worse), and none of them are in public life (outside of Zion). Sotomayor should have walked back from the statement; it is patent that it is just false. It is also not of any real importance -- she was talking in an informal way to a friendly audience. What Dworkin is saying next is next to foolishness. A judge with "a particular understanding would reach a better interpretation of the Constitution" does not mean much here. A particular understanding either means a theory of interpretation, including substantive normative views -- which will pretty frequently yield a preferred interpretation I would hope -- or he thinks there is some understanding that comes from being Latina (or maybe it is wise Latina), which is hard to take seriously. Is it Latina but not Latino? No Puerto Rican (or is it nuyorican?) Pinochet or Castro or .... is that the story? And I suppose all the white males are of a kind - can't tell the Germans from the Italians.
Dworkin's is a defense we can do without.
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