All Shepherds

Stop the Presses

2009-05-29T16:58:00.002-05:00

Tom Goldstein at SCOTUSblog is undertaking a review of about 100 race-related decisions by Judge Sotomayor. In between the posturing on both sides of the Sotomayor nomination, this appears to be one of the few truly productive efforts in the blogosphere. The preliminary verdict: not even the remotest appearance of racial bias. However, Sotomayor's published opinions don't necessarily reveal all the dimensions of her cases. I eagerly await the results of SCOTUSblog's investigation.

Varieties of Empathy

2009-05-29T12:52:00.004-05:00

Another bit of Sotomayor's case law has come to my attention via Sentencing Law and Policy blog: Hayden v. Pataki, concerning the voting rights of felons. The decision includes a one page dissent by Sotomayor that incorporates this gem,

"The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created."

This "commitment to textualism" as Doug Berman identifies it hardly seems reconcilable with a first round examination of the nominee who believes appellate courts make policy. The road to a synthesis of these two views of Sotomayor can be found through the majority opinion in Hayden. As it turns out, the issues that Sotomayor fears "may give the impression that this case is in some way complex" concern racial quotas and the 14th amendment. Once again, Sotomayor ignores rather than engages the subtleties of the 14th amendment. Readers may be forgiven for experiencing deja vu.

This is the nature of the "wise Latina" perspective that Sotomayor is proud of: result-oriented judgement. The Volokh Conspiracy gets it right on two counts, though I'm not sure if they've connected the two dots. First, whether or not Sotomayor is racist is not the point. There is certainly a disparity between how free a white politician can be with words as compared to a minority politician, but the progressive path in that sphere is not to treat every race with the rush to vilification applied to whites. Rather than racism, the point is the validity of Sotomayor's decision-making processes.

Vlolokh's second entry is on the doctrinal relevance of empathy. In short, empathetic decisions are emotional but can nonetheless be rendered within a logical, legal, textual framework. Sotomayor's opinions comprise a history of instead using text within an empathetic framework, as in Hayden above. And Obama considered that an asset. This is why I felt compelled to take Shakesville to task on that impassioned defense of empathy. The problem with emotion isn't that it leads to progressive positions, but that it only inconsistently incorporates notions of rights and justice into its brand of progressivism.

We Are All Shepherds

2009-05-29T09:55:00.002-05:00

It takes a certain degree of audacity to start a blog, implying as it does that people who have never heard of you yet need to hear what you have to say. There are conservative, liberal, centrist, Christian, atheist, libertarian, and socialist blogs, and now there is mine. I'm not sure what to call my position, but I have opinions and make no apology of the fact that I think they are better than most peoples'. Those who continue to read will hopefully find insightful comment on philosophy and meta-ethics both connected and unconnected with current events.

The name of the blog is taken from a phrase from the final scene of the television show Millennium: "We are all shepherds." If you're unconcerned with spoilers, you can watch the final scenes here: http://www.youtube.com/watch?v=8jp1WFwuEDU though I would encourage anyone to make time to watch the series in full. Like any series it has its weaknesses, particularly its spates of "serial-killer of the week" episodes. Yet, it also often displays more artistry and thoughtful consideration than is typical of the spectacle-driven medium of television.

Sotomayor

2009-05-28T18:21:00.006-05:00

Most of the debate around the nomination of Sonia Sotomayor is bound to revolve around whether she reached this point in spite of or because of being a hispanic woman. She is probably qualified, but by what criteria is she the most qualified, if not race and gender? It's a matter of record that her demographics influenced Obama's selection, but Shakesville, true to form, is quick to stuff the strawman that only sexists have a problem with this state of affairs.

It's unclear which side of the argument McEwan is trying to help by equating Sotomayor's much-vaunted "empathy" with affinity for minority groups. Ideally, attention could be redirected from race and gender to Sotomayor's jurisprudential qualifications. Unfortunately, her qualifications and demographics are rendered inseperable by her patent racial bias. The following quotation, offered by Sotomayor in 2001, should be familiar by now to anyone reaching a source as obscure as myself,

"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."

The New York Times attempts to put this bombshell of a statement into a sympathetic context by dissembling over the impossibility of a truly objective position. I'm sorry, but it doesn't fly. If she had constrained herself to the admission that her racial background influenced her judicial decision-making, that could have been easily excused on epistemelogical grounds, but her words are unmistakable: "a wise Latina woman... [would] reach a better conclusion than a white male..." Not a different decision- a better one.

Lest this be dismissed as an offhand slip of language such as to which everyone is subject from time to time, let's move on to Sotomayor's qualifications-proper: her legal decisions in the 2nd circuit of appeals. For the most part the body of her work consists of competent responses to somewhat technical legal challenges. However, two issues seem to push her buttons as they do for the public at large: race and guns. When confronted with a potential constitutional challenge to affirmative action in Ricci v. DeStefano, she rendered an anomalous per curiam decision adopting the reasoning of the district court without reference to constitutional issues. To argue against a constitutional challenge is one thing- to ignore it, quite another. Ironically, this makes questions about how her race has influenced her own career advancement highly apropos to her integrity as a jurist.

It's hardly the only evidence that Sotomayor makes decisions with more regard for ideology than the merits of the case at hand. Much has been made of her confrontational oral questioning, which while unimportant in terms of its tone, is nonetheless revealing in that its content is aimed not at eliciting truth but with browbeating the counsel in a manner evocative of Judge Judy with just how wrong they are. A pattern emerges of deciding cases before hearing them,

"She held a telephone conference call with the parties, decided witnesses weren't necessary and scheduled oral arguments. After listening to lawyers for 90 minutes, she took 15 minutes to deliberate, then spent 45 minutes reading her decision, making clear the bulk of it had been prepared ahead of time."

Ultimately, whether or not Sotomayor is confirmed is of limited consequence. Her probable positions are not remarkably divergent from Souter, who she would replace. Furthermore, if her jurisprudence is uninsightful as purported by some associated with the 2nd circuit, she's unlikely to influence other supreme justices to her way of thinking. Or, as Rod Dreher puts it, "Given that we were certain to get a liberal justice out of Obama, ... one has to take comfort in knowing that Obama made a quota pick too, and did not choose a liberal justice who can match intellects with Roberts and Scalia."

Respect for the constitution was Obama's most influential plank to me, yet Laurence H. Tribe, an advisor in Sotomayor's selection process tells us, "the White House [concluded] that her background and her concern with the consequences of court rulings would be a 'healthy antidote' to more formalist legal theories." Is strict constitutional construction now a poison which requires an antidote? "Concern for consequences" connotes subordinating both the letter and spirit of the law as legislated.

This is undisguised judicial activism, as exemplified by Sotomayor's opinion in Maloney v. Cuomo that the second amendment limits only the federal, and not state, governments. Regardless of your position on firearms, this is a threat to constitutional rights. Sotomayor relies for this opinion on an 1866 precedent. Whither the 14th amendment? It doesn't apply to the 2nd amendment as it would to the 1st, renders that per curiam opinion, as the right to bear arms is not a "fundamental" right. It should come as quite astounding to the authors of the bill of rights that some of the rights they enumerated were not fundamental. Which right will be deemed non-fundamental after the next president packs the bench with his or her favored idealogues?

The real reason Sotomayor is important is that her nomination is further proof that the hope and change I voted for has been pre-empted by run-of-the-mill partisanship. This is hearsay, granted, but we have it here on the word of an individual close to the selection process that Obama selected Sotomayor on the basis of her judicial activism. That makes Obama, not Sotomayor, the key figure of this public debate.