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Punishing Judge Sotomayor for her Candor

By Jack M. Balkin

It is essential to understand what is at stake in the growing flap over Judge Sotomayor?s comments that appellate judges must occasionally make choices, and that these decisions are sometimes influenced by their backgrounds: Candor will be the casualty if her comments are used to derail her appointment.

Although a few opponents suggest that her comments are shocking or injudicious, dozens of prominent judges?including conservative judges?have said similar things going back more than a century (as elaborated in The Realism of Judges Past and Present). Here are just three examples:

Judge Thomas M. Cooley, a famous conservative in his day, wrote in 1886 that uncertainty in law is inevitable ?because in the infinite variety of human transactions it becomes uncertain which of the opposing rules the respective parties contend for should be applied in a case having no exact parallel, and because it cannot possibly be known in advance what view a court?will take of questions upon which there is room for difference of opinion.? He added that ?just and well-instructed [judicial] minds? can legitimately disagree in their legal interpretations, and this ?must always exist so long as there is variety in human minds, human standards, and human transactions.?

Judge Irving Lehman of the highest court of New York acknowledged in 1924 that in some cases there is no clear legal answer and judges must occasionally make policy decisions. ?No thoughtful judge can fail to note," he observed, "that in conferences of the court, differences of opinion are based at least to some extent upon differences of viewpoint.?

Judge Alex Kozinski, a contemporary conservative darling once touted as a Supreme Court nominee, declared: ?judges do in fact have considerable discretion in certain of their decisions?; with legal principles ?there is frequently some room for the exercise of personal judgment?; ?precedent?frequently leaves room for judgment?; ?we all view reality from our own peculiar perspective; we all have biases, interests, leanings, instincts.?

Many dozens of prominent judges, past and present, have made similar comments. Judge Sotomayor is nothing special in this regard. Indeed, the outlier is Chief Justice John ?I just call balls and strikes? Roberts, who, to his discredit, stood out for his lack of candor on this issue in his confirmation hearing.

There are important questions surrounding how these choices should be made by judges (which Jack addresses below), and Judge Sotomayor should be asked about her judicial philosophy on these matters. But it is absurd to suggest that judges on the highest appellate courts do not make choices in legally uncertain cases.

Full post as published by Balkinization on May 29, 2009 (boomark / email).