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July 20, 2009

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The empirical evidence of a link between gender or race of judge and results in most cases is still weak. Sotomayor-the-social-scientist overclaimed.

Sotomayor-the-judge, on the other hand, seems fine and not particularly left wing.

The empirical evidence of a link between gender or race of judge and results in most cases is still weak.

And yet, I feel confident in Colbert's examples...

Given that she was going to be confirmed regardless of whether or not she kowtowed before the Judiciary Committee, I was annoyed that Sotomayor merely apologized that her statement seemed offensive out of context rather than affirmatively defending her original point. I wanted her to quote Justice Brown's opinion in Plessy V Ferguson -- "there's no implied inferiority in segregation." Point out that no one with the experience of a victim of segregation would say that. In fact, no one with experience on the other side of segregation would likely say that (Brown didn't grow up in a segregated community). Specifically, she should've asked Sessions whether, had he had the experience of growing up in a community devastated by the Ku Klux Klan, he would've cracked jokes about them being great guys.

The fact is that you could quote Brown's opinion and tag it with "-George Will,"-Newt Gingrich," or "-David Brooks" and few would recognize the error: Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

That's as convincing a critique of "racialism" as any I've heard in the past few weeks.

I'm just irritated, as per Balko's article over at Reason, that there was scant discussion in the hearings of criminal justice policy, and the little there was was that depressing "tough on crime/criminals" pablum that all politicians recite.

The empirical evidence of a link between gender or race of judge and results in most cases is still weak. Sotomayor-the-social-scientist overclaimed.

Gender and race are irrelevant to most cases, so I'm not sure why you'd expect otherwise. The empirical evidence does suggest that a judge's gender not only affects their decisions in sex discrimination cases but also affects how other judges on a panel decide cases:

In research that we conducted with our colleague Andrew D. Martin, we studied the votes of federal court of appeals judges in many areas of the law, from environmental cases to capital punishment and sex discrimination. For the most part, we found no difference in the voting patterns of male and female judges, except when it comes to sex discrimination cases. There, we found that female judges are approximately 10 percent more likely to rule in favor of the party bringing the discrimination claim. We also found that the presence of a female judge causes male judges to vote differently. When male and female judges serve together to decide a sex discrimination case, the male judges are nearly 15 percent more likely to rule in favor of the party alleging discrimination than when they sit with male judges only. This holds true even after we account for judges' ideological leanings.

She seems to be pretty much within the reasonable realm of what you can expect from a Democratic president, so not worth fighting about. She seems interchangeable with her predecessor on most important issues, with the major exception of defendant's rights where she seems to be more pro-government than Scalia or Thomas. See for example Mother Jones or Balko at Reason or the deeply annoying Jocks v. Tavernier case reported by Slate where she again does the trick of allowing summary judgment when there are clearly facts in dispute for the jury.

She is also awful on the takings clause (see volokh for a long line of posts on how she manages to go even further than the ridiculous Kelo case) but I unfortunately expect that from a Democratic nominee.

Now, in a perfect world, judges would be colorblind and infinitely empathetic such that absolute neutrality, and the total usurpation of personal bias and the influence of life experiences, was not only an attainable framework for judging, but a commonplace one. But since we live in this world instead, diversity provides a helpful check on the inevitable effects of judges' personal contexts and histories - especially when those personal histories have tended to be relatively uniform, thus increasing the risks of certain lapses.

This. In bold, 72-point font, flashing, to be played back inside the eyelids as needed.

The idea that any human being can entirely remove themselves from their own frame of reference is prima facie ridiculous. But that doesn't stop the recurring bleating to the contrary from people who should know better, if only they could remove themselves from their own frame of reference long enough to see it.

It is fundamentally impossible. Full stop. No exceptions.

That's not to say that it is impossible to impartially administer the law, especially when the law is very clear. But the law is not always clear, and it must be applied to a chaotic, changing, and unpredictable world. And when a case gets to the SCOTUS level, it's likely because the law is not clear, and there are multiple possible competent, good faith interpretations of how it applies in this context.

The path that leads to those different interpretations is paved with the sum total of each justice's culture, ethnicity, religion, ideology, experiences, first principles--their baggage, the good and bad alike. If it were not so, there would be only one possible interpretation of the law, and we would not be having this conversation.

I'm sick of this idiotic, delusional expectation that our SCOTUS nominees be automatons who pretend not to have opinions.

Unbelievable to listen to Michael Steele, on Hardball today, defending the Republican's line of questioning and remarks made during the Sotomayor hearings. Steele claimed that Sotomayor refused to answer questions about her record. He claimed that she had been coached to avoid answering their questions. He went on to claim that repeatedly questioning her "wise Latina" comment was extremely important."It's what the people want to know." According to Steele, Graham's sexist remarks (meltdown, bully, take time to examine your temperment) were okay too. "We don't know any more about her than we did before the hearings!" Steele exclaimed. Never mind that Sessions, Kyl, Graham, Cornyn, Corbin, and the rest of the GOP gang didn't bother asking about Sotomayor's record. Instead, they focused on Latino organizations, guns, affirmative action and abortion. The gang of old white men felt clearly threatened.

Turbulence,

I've seen that research, and the take home fact is that the effects are small. Smaller than people like Catsy would think, anyway.

I just wanted to say thanks for the post. It seems like the most obvious analysis, yet one that did not make the mainstream. In issues of racial and sexual discrimination, women and minorities in general make better decisions. (Pithlord may be right, but the argument is at least worth airing).

I dreamed of Sotomayor turning to Sessions and pointing out she was going to be confirmed when he was not because she was a wise latina and he was a dipstick white man.

"It was odd to see the way the GOP turned the Sotomayor confirmation hearings into the 'wise Latina' show"

It's all they had: using that, and Ricci, and her ethnicity, and her gall to have had her ethnicity and femaleness be significant to her, and having spoken of that significance in forming who she was, to either imply or explicitly claim that she was racist. Because being anti-racist is, after all, what these folks are all about.

I dream of a world in which a Democratic President nominates and gets passed the liberal equivalent of a Rehnquist, a Scalia, a Thomas, a Roberts, and Alito. An actual flaming liberal, like a Thurgood Marshall, a William Brennan, a William O. Douglas, a Louis Brandeis.

I have a vivid fantasy life.

Instead, we get Republican Presidents doing their best to nominate (Robert Bork) and pass (see aforementioned list) extreme conservatives, and we get Democratic Presidents of my lifetime nominating middle-of-the-road centrists, or at best, very mild liberals such as Ruth Bader Ginsburg.

And so moderate or mild conservatives and middle-roaders become called "liberals" or "extreme liberals," in a world gone mad.

That's the view of an actual liberal. And don't even ask what a genuine leftist would think. (Bourgeois courts will inherently uphold the interests of the wealthy and powerful, no matter the individuals involved.)

"In issues of racial and sexual discrimination, women and minorities in general make better decisions. "

Different, not necessarily better...

Well, that depends on how we're defining "better," doesn't it?

"Different, not necessarily better..."

I'll go out on a limb and assert that "in issues of racial and sexual discrimination," as a general rule -- obviously only as a general rule, with exceptions for excessively biased individuals or those with poor judgment -- those who have actually experienced such discrimination will have far more knowledge of the subject than those with no experience, and thus will tend to make "better," not just "different" decisions, on those specific issues.

I would similarly argue that as regards anti-gay discrimination, you are apt to be in a better position than I am to make more accurate and "better" evaluations as regards related issues.

I would similarly argue that anyone with more personal experience of any given issue is apt -- as a general rule, not as any kind of absolute claim, of course -- to make "better" decisions, because of more knowledge -- than someone ignorant of the given issue by virtue of completely lacking personal experience of the issue.

I really don't think this proposition should be all that controversial. Do you, Sebastian?

Unfortunately, in the Berkeley speech, she did claim that race/gender makes a difference in "most" cases, which seems to be false.

I think she was wise (so to speak) not to defend extreme legal realism or post-modernist epistemology. Skin colour and gonads really do not dictate how you interpret the Revenue Code of the federal rules of procedure.

At bottom, she's a black letter judge and a former prosecutor/corporate litigator with mild liberal tendencies. I'd give 50/50 that she'll be an improvement on Souter from a conservative perspective.

see volokh for a long line of posts on how she manages to go even further than the ridiculous Kelo case

I.e, she is activist in that she refuses to legislate from the bench in the direction you'd prefer.

I.e, she is activist in that she refuses to legislate from the bench in the direction you'd prefer.

Please don't tell me you think that Kelo is a reasonable reading of the takings clause.

Mike, "I.e, she is activist in that she refuses to legislate from the bench in the direction you'd prefer. "

The Constitution doesn't require that "nor shall private property be taken for public use, without just compensation" be read as "nor shall private property be taken without just compensation".

Gary, "I would similarly argue that anyone with more personal experience of any given issue is apt -- as a general rule, not as any kind of absolute claim, of course -- to make "better" decisions, because of more knowledge -- than someone ignorant of the given issue by virtue of completely lacking personal experience of the issue."

Is this a general proposition IN LEGAL INTERPRETATION? I don't think so. I think it is at least as likely that someone with personal experiences will decide to stretch beyond the law to correct for their personal experiences. I think I'm at least as likely to make a wrong Constitutional decision on hate crimes laws since I have been subjected to an attempted gay bashing as I am to reach a correct decision *that would not have been correctly reached by a non-gay judge*.

Sotomayor actually doesn't strike me as having that problem, but I certainly would not advance the proposition that you did, Gary.

The Constitution doesn't require that "nor shall private property be taken for public use, without just compensation" be read as "nor shall private property be taken without just compensation".

It actually allows taking land for non-public use with no compensation whatsoever. But since I'm not a textualist, I don't insist on that reading.

What you're really saying is that you disagree with the Court on the definition of "public use". I'd be interested in seeing a conservative group object to a government taking private property to build a football or baseball stadium, as is not uncommon. Somehow enriching team owners doesn't seem to offend them.

"It actually allows taking land for non-public use with no compensation whatsoever."

No it doesn't. And I'm surprised you think that any form of jursiprudence would interpret it in that way. That is actually much more classic living constitutionalism. 200 years of history in interpreting that made it clear that private takings by the government weren't supposed to happen at all. Furthermore that reading would completely rub out the public restrictions, as you could just make a 'private' taking every time and then convert it to public.

"What you're really saying is that you disagree with the Court on the definition of "public use"."

Yup. Quite right. Taking a piece of land with homes on it to give it to a private developer to put other homes on it for sale for his personal profit, isn't public use. That is private use.

In fact it is difficult to imagine something much more 'private use' than that. I absolutely disagree with the Court on the definition of public use.

"I'd be interested in seeing a conservative group object to a government taking private property to build a football or baseball stadium, as is not uncommon."

I don't speak for any group, but I HATE HATE HATE that professional football stadiums and baseball stadiums get built with public money and eminent domain. I also don't like it when someone like Donald Trump uses eminent domain to get land for his casinos.

Please don't tell me you think that Kelo is a reasonable reading of the takings clause.

I don't know whether or not it is 'reasonable', but it is the reading that has been applied for at least the last 200 years.

Kelo is a reasonable interpretation of the takings clause.

We can disagree about what constitutes "public use". But it definitely seems like the kind of question that elected branches would have an institutional advantage over the judiciary. The judiciary should make sure compensation is adequate, but it's hard to see where it gets the institutional competence and legitimacy to tell elected officials what purposes they can pursue.

Kelo is a much broader interpretation than what was found in the last 200 years, and Sotomayor's recent takings case even more so. If her case were Supreme Court law, I really have difficulty imagining any taking that couldn't be public use. And having any possible taking being public use can't be the proper interpretation or the clause would be "nor shall private property be taken without just compensation".

And that actually is the kind of thing where textualism is useful. It at least points out that it doesn't make sense just to interpret the clause as if it doesn't exist. Living constitutionalism says "precedent led us here, so who cares" which whatever it is, isn't constitutionalism so much as precedent fetishism. Now that theory is very popular I'll agree. But so are many cases where government takes power--see ever shrinking protections on defendant's rights, or even see the flirting with majority levels of popularity in torture.

"The judiciary should make sure compensation is adequate, but it's hard to see where it gets the institutional competence and legitimacy to tell elected officials what purposes they can pursue."

Same place it get the legitimacy to judge what is cruel and unusual punishment. And more firmly grounded than the institutional competence to form a constitutional right to privacy.

If you are going to start questioning judicial review at the "the phrase actually exists in the Constitution" level, you have to throw out a lot of other judicial review which goes far far beyond that. Which maybe we should. But just be aware of where you're attacking the structure.

I'm not making a textual argument. As you know, everything turns on the level of scrutiny the judiciary use. Economic development is a legitimate public purpose. In Kelo, the courts were being asked to substitute their judgment of whether New London's scheme would work as economic development for that of the elected politicians. That would have been a radical step, and there isn't much case law where a "public use" wasn't found for that reason.

No it doesn't.

Read the words with no preconceptions about what it should mean:

nor shall private property be taken for public use, without just compensation

It says nothing about taking property for non-public use. If I say "Nor should children should walk outside, without an adult companion", I've expressed no opinion on what they should do inside.

But that's a strictly textual reading; that it leads to nonsense is unsurprising.

Textual readings don't require that you apply a complete lack of understanding of the framework. In fact they require that you understand some unstated things about the framework.

For example nowhere in the Constitution does it say "this text is to be interepreted as if the words were in English" yet a textualist would feel safe to assume that.

No jursiprudential method is perfect, but a useful insight from textualism is that you shouldn't 'interpret' a clause into a nullity. If you believe for example that the privileges and immunities clause means absolutely nothing--that it could be replaced with random keystrokes with no practical effect whatsoever, you're probably interpreting it wrong.

Mike,

At the time of the Fifth Amendment, it only applied to the federal government. Congress was already limited to enumerated powers, all of which presumably are "public uses." So it couldn't very well take for a non-public use.

Anyway, Sebastian is right. No textualist anywhere has required absurd readings: see Blackstone's discussion of shedding blood on the streets of Bologna, and how that can't apply to a surgeon trying to save someone's life.

"In fact they require that you understand some unstated things about the framework."

You mean there's some sort of penumbra of meaning surrounding the actual words?

"If you believe for example that the privileges and immunities clause means absolutely nothing--that it could be replaced with random keystrokes with no practical effect whatsoever, you're probably interpreting it wrong."

See Robert Bork and 9th Amendment "Ink Blot" jurisprudence?

"You mean there's some sort of penumbra of meaning surrounding the actual words?"

No, penumbra is an extension of meaning that wasn't originally there. The fact that the Constitution is in English is a structural fact about the document. The fact that only public takings were regulated becuase the government wasn't supposed to be doing private takings is another such structural fact.

And of course the same flaws are available to the competing theories. Most of them just push the text which is capable of being seriously misinterpreted from just the actual text to judicial decisions.

"See Robert Bork and 9th Amendment "Ink Blot" jurisprudence?"

Sure. Conservatives can say stupid things too.

Textual readings don't require that you apply a complete lack of understanding of the framework. In fact they require that you understand some unstated things about the framework.

Really? You need to understand unstated things, most likely picking and choosing among various candidate unstated things to arrive at a sensible result? And different people might make different choices, leading to different conclusions? And one of the factors in your choice might be a notion of what's relevant to the differing parties, that is, an understanding of the reason for their dispute, that is, you should pardon the expression, empathy?

You don't say.

The fact that the Constitution is in English is a structural fact about the document.

Fair enough. Any attempt to say:

This document is written in English.

leads to an infinite regress.

The fact that only public takings were regulated because the government wasn't supposed to be doing private takings is another such structural fact.

That's a tacit assumption, which fits in an entirely different category.

Mike's making the mother of all slippery slope arguments. Reading any text requires making presuppositions. Therefore, no text means anything other than what I want it to make.

The premise is true, but the conclusion doesn't follow. If it did, you couldn't make the argument. After all, it would apply as much to the text of Griswold or the collected works of Duncan Kennedy as to the Constitution of the United States.

Mike's making the mother of all slippery slope arguments

I'm simply asking questions. The next one is, how do I know what presuppositions and tacit assumptions I'm allowed to make? I thought that's what legal precedents were for, but I've now learned that textualists distrust precedent, so I know less now than I did when we started.

How do you even know what a precedent you might read means? You have to make assumptions about precedent too.

It is a text, no more or less than the Constitution. The problem with most anti-textualist arguments is that the competing theories are no more resilient to the criticisms than the original text.

Sebastian's got you there. Radical indeterminacy about language just undermines all communication. It has no special affection for Roe v Wade or Carolene Products.

A textualist doesn't object to precedent per se, but does object to giving case law higher authority than the Constitution.

Case law that precedes constitutional text is part of its historical context, positively or negatively. You can't understand the Fourteenth Amendment without reference to Dredd Scott.

Case law that comes later helps to deal authoritatively with issues left unsettled by the text, but I can't see how it can help us figure out what the text means.

I watched the whole hearings, and I find it ludicrous to say that the senators were "virtually ignoring the output of one of the longest judicial careers of any recent Supreme Court nominee". Most of the Republicans on the committee (I don't think all of them) did discuss the "wise Latina" comment. But i think only one or two devoted even equal time to political speeches when compared with decisions they wanted answers about.

There were plenty of cases that got attention. These cases involved her jurisprudence on a wide variety of issues, from at least the 1st, 2nd, 4th, 5th, 8th, 14th, and 15th Amendments (off the top of my head; I'm sure more came up). As President Obama is fond of saying, it's the 5% of cases that are controversial that really matter, so it shouldn't be surprising that they focus on the convtroversial ones. But to suggest that they didn't discuss them at all and only discussed her speeches is at odds with the record.

As for the speech itself, the worry is this. She said certain things in those speeches that seem at odds with how she now presents her judicial philosophy. The reason you can't just point to her appellate decisions to show that she's more like her confirmation-hearings way of describing things is that she made those decisions as an appellate judge, not as a Supreme Court justice. She was bound by precedent and would be reviewed potentially by the Supreme Court. Without those restrictions, she might not have quite the conservativish-sounding judicial philosophy that she has outlined in these hearings. Shouldn't judicial conservatives be worried about that? I certainly think so.

But to suggest that they didn't discuss them at all and only discussed her speeches is at odds with the record.

But I did not suggest that. Actually, the language I used implies that they did not "only discuss[] her speeches" - that's why I said "virtually" ignored and not ignored. Regardless, it was meant to be tongue in cheek and intentionally hyperbolic which I thought was plain to see, but then again, sometimes tone does not translate well. So I'll take blame for that.

As for the speech itself, the worry is this. She said certain things in those speeches that seem at odds with how she now presents her judicial philosophy.

Like what?

Jeremy,

I doubt she's a "judicial conservative." OTOH, judicial conservatives could do a lot worse with a Democratic President and a 60-40 Senate. But we shall see, I suppose.

She strikes me as within the realm of 'best we can get from a Democratic President', so there we are.

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