By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
So, the announcement has been made, and the press releases -- pro and con -- that have been sitting ready for days and weeks now are shooting their way back and forth like a screen-capture from Joshua in Wargames. Not to mention the oncoming barrage of blog posts, which, although perhaps not drafted in advance, in many cases will prove no more fresh or surprising than if they had been. I have written before that the Supreme Court confirmation process has become, in effect, a game. Not in the sense that it's meaningless or trivial; of course it will have real-world effects, although those effects will be far less great than some of the ensuing arguments will make it seem. Rather, it's a game in the sense that it follows an evolving but reasonably stable set of standard rules and moves, in which everyone knows and plays their part. That many people will be passionate about this -- that they will be convinced that they are not simply playing a part, that this nomination and this nominee matter more than most -- does not refute this point; football players and their fans go through the motion about a dozen times a year, and to tell them each game is the same old game, that each is more or less predictable as a game, if not in outcome, and that there's no point getting worked up about it would be a pointless conversation. And, as I've also written, like other games, the Supreme Court confirmation game is also about goods that precede and in some ways can be more important than the actual identity of the nominee (hence the brackets around Sotomayor's name in the title of this post), because it serves other purposes: fundraising, ideological wagon-circling, political advantage, and, tying these all together, the simple perpetuation of activities -- and jobs! -- that depend on a continuing supply of those goods. So, of the Sotomayor nomination, I say with weary resignation, let the games begin.
Of course, the academic stance I'm giving above, although I think it's true to life, is also part of the game. So let me play my part, too, with a few instant observations. First, I've relied heavily in writing about these issues recently on the statements of Wendy Long, of the conservative Judicial Confirmation Network. I'm not singling her out because of some animus. Rather, two things make her a great example: she plays her part so well and so transparently, and her income and raison d'etre so clearly depend on her playing it, regardless of who is chosen. We could, I think, say the same thing about National Review's Bench Memos blog (and no doubt many liberal blogs), and today the two converge. Long writes on the
blog:
Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written. She thinks that judges should dictate policy, and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench.
Not to put too fine a point on it, but this is bullshit. Not in the sense that it is untrue! Some of these criticisms may be well-founded, or not. Most of them are relatively meaningless or unproductive, in the sense that they barely make factual claims at all, but just state -- really, restate -- vague and contestable value judgments. Those judgments may be fair or unfair; mostly, they depend on your agreement with antecedent premises, such that any useful discussion of Long's statement really has to be an argument about those premises, not about Sotomayor.
And that's the final point: most of these statements are suitably airy that they could be voiced about just about anyone Obama was likely to nominate. I am sure that the phrase "liberal judicial activist of the first order" would have appeared in a statement from Long no matter who the nominee was. Similarly, I could draft a critical statement of similar length and accuracy right now that would describe just about any nominee the next Republican President is likely to put forward, without even bothering to ponder a shortlist of potential nominees.
That's the sense in which Long's statement is bullshit. In a (Harry) Frankfurterian sense, it does not matter whether Long's statement is especially true or false about Sotomayor -- to Long, whether she knows it or not, or to anyone else. It may be that this is inevitable; it may be that it is largely impossible to have a particularized and productive discussion about anyone who is likely to make it through the Supreme Court vetting process, short of the kinds of personal accusations that characterized (and in many respects marred) the Thomas nomination. But this is the very definition of buillshit I am using here. We are engaged in a conversation in which, in some ways, both sides of the dialogue are not so much telling the truth or lying, but speaking in a way that is relatively indifferent to whether what they say is true or false. We are having a conversation that purports to be about an individual -- Sotomayor -- and that plugs in suitable pieces of her biography or her public statements or her decisions from time to time, but which is largely indifferent about whether we are speaking accurately about that individual, because we are really talking about something else -- whether to support liberal nominees or conservative nominees, regardless of how much or little it actually matters, or whether the Democrats should win or lose, or what we think about abortion, or who is to have the political and fund-raising advantage, and where Wendy Long (or Ralph Neas, or some FedSoc or ACS official) is to have his or her next expensed meal (or which law professor is going to speak to which network!). The Sotomayor game is not an unimportant game, although its implications can be exaggerated. It does have real-world effects, as I wrote. And, of course, it is not unimportant, financially, ideologically, or otherwise, to those who will find themselves playing it. But it is a game, and it is substantially a bullshit game.
In that sense, let me make two recommendations. They may seem somewhat contrary to my suggestion that we are having a conversation that pretends to be concerned with the particulars of Sotomayor herself but really isn't, but I think they are actually in service of this point. The first is that it is somewhat pointless, barring exceptional circumstances, to care too much about the particulars of Sotomayor's record. My point is not that her background or record are irrelevant, but that both parties have learned to nominate individuals who meet any plausible set of expectations that we might hold of a Supreme Court Justice: the nominee will be reasonably smart, experienced, talented, and so on. Indeed, that is why we pretend to care so much about particulars, about individual decisions or statements or even gaffes -- and why, when those talking points fail, we dig for other behavior (sexual harassment, corporate conflicts, drug use, etc.) that might serve as disqualifiers. Both parties at this point can be relied on not to nominate idiots or monsters; that leaves us arguing over what each side will argue are telling details, but which rarely are. Whether or not Sotomayor said that a wise Hispanic woman will reach better decisions than an old white guy, I doubt her overall record will actually suggest someone who departs from pretty standard notions of impartiality and the rule of law. Whether she was right or wrong on the New Haven case, her opinion will turn out to have been voiced in, or capable of being voiced in, the kind of standard professional rhetoric that judges and their clerks can employ to make a wide range of views "reasonable" in a professional sense. As for Long's accusation that Sotomayor believes that judges "should dictate policy," what Sotomayor really said was that judges inevitably make policy, and everyone who is not a talk-show host already understands this, from Scalia on down. (From the second and third pages of Cardozo's Nature of the Judicial Process: "I take judge-made law as one of the existing realities of life. . . . Not a judge on the bench but has had a hand in the making.") So, absent some extraordinary evidence that is highly unlikely to arise, let us not waste time turning trivialities and incidentals into talking points and issues for debating societies. Let us not pretend that some particular statement or decision gives away the truth about the nominee. If we want to discuss liberalism versus conservatism, let's do that; but let's do away with the pretense that we're really talking about the particular nominee, or that some sound bite should make the difference between confirmation and rejection.
Conversely, and with all due respect to my guest co-blogger Rob, a former Sotomayor clerk, let us please dispense with the argument that Sotomayor should be confirmed because she is the best nominee in the best of all possible worlds. She may be -- I doubt she is, but I'm largely (and I think soundly) indifferent on this point -- and she may not be, but that is a silly standard. Rob rather famously
wrote here that Sotomayor is "
an absolutely brilliant jurist and an absolutely brilliant person" (emphasis in original!). He added that he made this judgment on the basis of having:
worked closely with some of the very best minds in the world, in both law (at Yale Law School and in the legal academy) and philosophy (at both Harvard College and the University of Michigan?s graduate school, which was widely considered the best department in ethics in the world when I was there.) Judge Sotomayor stands out from among these people as one of the very brightest; indeed, she is in that rarified class of people for whom it makes sense to say that there is no one genuinely smarter.
I can't, of course, say that this is untrue, not having met Sotomayor or, I dare say, most of the smartest people in the world. I would note that that the comma between "world" and "in both" in Rob's sentence above should be omitted if his statement is to be genuinely accurate. I highly doubt that the very best minds of the world can be found in either law or philosophy; Rob has, at best, worked closely only with some of the very best minds in the world in law and in philosophy, and that's not at all the same thing as working with some of the very best minds in the world tout court. I doubt even the more qualified version of Rob's statement. I don't doubt that some of the best minds in law and in philosophy could have been found at Yale and Michigan, but both faculties obviously also contain some lesser minds, and for many reasons, geographical and so on, many of the genuinely very best minds are likely to be found dispersed among many other institutions or, in the case of law, in private practice. (Not to mention the likelihood that many of the very best minds in either subject are not English speakers or Anglo-American lawyers.) Even assuming that the qualified version of Rob's statement is true, I do not assume that working closely with these individuals is a good way to evaluate how brilliant they are. Surely all former proteges and law clerks realize just how much their relationship to their mentor or judge, the particular nature of that relationship, the filio-piety of the academic and legal worlds, and their own experience can distort an objective evaluation of the people with whom they have worked closely. The last person I would go to for an objective evaluation of, say, Harry Blackmun, is a former Blackmun clerk. So maybe Sotomayor is as brilliant as Rob says -- maybe there are none more brilliant -- but I doubt it.
In any event, that standard is neither necessary nor sufficient. First, it is hardly necessary for a Supreme Court Justice to be the smartest person in the world. However difficult the job is, it is not that difficult. Second and more importantly, lawyers and other workers in the intellectual industries can seriously overstate the importance of brilliance. Many other qualities can be as or more important to the job, such as humility, perspective, a reasonable degree of self-doubt, practical wisdom, good judgment, and so on. Lacking these qualities, a supremely brilliant nominee would not necessarily be a good choice. I see no reason to think Sotomayor lacks a reasonable degree of these virtues -- again, I think the vetting process and the degree of experience one must accumulate before being considered for the job largely takes care of this for virtually any imaginable nominee of either party. But my point is that Sotomayor neither especially needs to be the world's most brilliant person, nor would she necessarily be suited for the job if she were. I think we can see some evidence of that in the rest of Rob's post, in which he conflates brilliance in the sense of intelligence with brilliance in a variety of other qualities, such as getting the most out of her employees.
There is a further problem here. Setting up Sotomayor as the very best, or (what is not the same) the very smartest, possible nominee again leads us to focus on batting back and forth over what amount to trivialities, in which we either argue that Sotomayor cannot be the world's best nominee because she once said something stupid, or in which we go to heroic lengths to justify every statement Sotomayor has ever made. (Remember Bush 41 saying that Thomas was the best possible nominee for the job? And liberals arguing that this was an absurd statement? Neither proposition ultimately had much to do with whether or not Thomas should have the job, of course.)
Finally, and again somewhat in contradiction to Rob's post, and for that matter in contradiction to Jeff Rosen's earlier article, let us not waste undue time arguing over whether Sotomayor is loved by her clerks, or by advocates before the Second Circuit, or conversely whether she is brusque or impatient. I personally find these qualities very important, and am likely to prefer people who do not forget how to treat those around them over those people who take on superior airs or treat others badly, whether or not one person is "better" at some job than the other. But this is a personal predilection. In a deeper sense, though, I doubt it matters that much. The old saying holds that no man is a hero to his valet; for law clerks, it is more true to say that every man is a hero to his valet. But neither is that important. Whether Sotomayor's former clerks love or hate her says something about how she does her job, and maybe about what kind of person she is (although, again, law clerks are unreliable sources), but very little about how well she does her job in ways that the rest of us have any reason to be concerned about. Similarly, oral argument is itself only somewhat important to a judge's job -- and being liked during oral argument is still less important than that. It is interesting to hear Jeff Rosen and others argue about what lawyers thought of Sotomayor's behavior on the bench, but, really, I see no reason to care much whether they liked her demeanor or hated it. She could be a perfectly horrible person and a perfectly qualified Supreme Court Justice, and vice versa. (And what of the relationship between any of this and the "empathy" debate? It is possible to be empathetic in carrying out one's duties, professionally empathetic as it were, and yet oblivious to the feelings of people immediately in one's path. That's crummy, in my view, but utterly common. And, again, vice versa; how many people who preach social justice and fairness for all also yell at their secretaries?)
This has been a very long post indeed, and since I've suggested that most of the debate about Sotomayor will be, in a sense, rehearsed, one might ask whether it's worth talking at such length about all of this. I think so. My point ultimately is a little peculiar, perhaps. It's not that by recognizing all of what I've argued above, we could have a more productive discussion of Sotomayor. Rather, it's that there is very little point in having very much conversation about Sotomayor at all. The more we talk about her, the less likely it is that we will actually be talking about her at all -- unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct. The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I've already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on. Those are the issues we are actually debating when we purport to argue about a specific nominee. Debates over those issues are, of course, generally unproductive, although they are the stuff of our broader political dialogue. But we can't make it otherwise by arguing about the details of particular nominees. We can't turn an endless (and, for some, professionally rewarding) debate over essentially contested principles into a useful conversation by pretending that we're actually having a dispute over individual nominees -- especially when, given how well both parties are vetting their nominees, those nominees' bona fides are largely incontestable.
Again, just because this is largely a game does not mean it is not an important one, or at least one that some people will care very much about playing. But we could play it a little more honestly, or at least be a little more honest about the fact that we are playing it. We could have unproductive but honest debates about the fundamental issues that actually concern us, rather than pretend that the things we are actually talking about are all that important. And if that feels too absurd -- if we acknowledge that it's pretty ridiculous to argue over what Sotomayor said in one line of a speech, and equally ridiculous to argue over how brilliant she is, but we think it's just as ridiculous to have another conversation about Roe v. Wade -- perhaps we could just talk less altogether. Frankly, I could think of worse things. I see no special reason to care all that much about giving Wendy Long, or Kate Michelman, or whoever else, a generous income, or to give law professors like me a more prominent forum.
