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Academic

: The Faculty Lounge

What's the Scholarship on the Sotomayor Hearings Going to Look Like?

By Alfred Brophy

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As I'm taking a mid-morning break from edits on Integrating Spaces, I see that lots of legal academics are disappointed in the Sotomayor hearings. I enjoyed listening to them (a little bit on CSPAN radio as I was driving through DC and listing on-line at home and in the office). But like a lot of other academics, I thought it was a missed opportunity to have a discussion about legal theory. (Maybe no one other that legal academics and a few law geeks think that. And the Bork hearings were when I was a 1L, so maybe this is nostalgia. But weren't they more substantive? Maybe that's just rosy memories of long-distant days. Then again, we all know how those hearings turned out!)

So that leads me to make a statement and to ask a question. First, the statement: if academics are so disappointed in the hearings, I think it's our responsibility to write a little bit about this, identify what was missing and help to fill those gaps. Now the question: what will that scholarship around Sotomayor look like?

At the most mundane level, some of it will be what Thomas Carlyle derisively called the gazetteer: that is, retelling what happened. And on that I have to say Judge Sotomayor had a command of a lot doctrine -- doctrine that I (fortunately) these days don't have to deal with. I sure wouldn't want to have to be able to discuss intelligently cases across a broad spectrum and in the depth that she and the senators did. I'm happy to be able to focus intensely on tending the gardens of property, trusts and estates, and antebellum and early twentieth century legal history.

Then we can move to why it happened this way? There'll be some sophisticated explanations that are, in essence, "if you say anything controversial, you'll get into trouble." So the advice is hunker down. At one level that makes a lot of sense. But it's possible to go too far with the hunkering. For me the amount of hunkering was illustrated by an interchange with Senator Al Franken. (Never thought I'd see those words together.) Franken wasn't trying to be particularly funny when he asked about Perry Mason, I don't think. He say something along the lines of how could Perry Mason "What was the one case that Perry Mason lost?" The Judge (completely understandably) couldn't remember the name of the episode. I can't tell you what I had for dinner last night--forgetting trivia like that's completely understandable. So when Franken said, "Didn't the White House prepare you for that?," he was trying to be lite and friendly. And yet, Judge Sotomayor didn't seem to even want to joke with him about Mason. I would have thought that a response like, "obviously not well enough" would have been good. But that's just an illustration of the mechanical approach. Well, if you believe in mechanical jurisprudence, the hearings may be a good way of shaping judges into that mold. (Or of insuring that mechanical judges are the people selected for that role.)

Some the scholarship ought to address what could have been said.

Now, we really missed the chance to have a discussion about the role that sentiment might play in judging. There's a huge literature on this in American history--and a lot of ink (and if you count the Civil War, blood) has been split on these issues. (Channeling now the SF district attorney as he spoke to Clint Eastwood in Dirty Harry): Billy Budd mean anything to anyone at those hearings? Shouldn't Brown v. Board of Education have some role in these debates? Anyone ever hear of Uncle Tom's Cabin? Of Justice Thomas Ruffin's defense of slavery against sentiment? (I know Obama has, because he taught Ruffin's opinion in State v. Mann.) And even beyond sentiment (what Obama called "empathy"), of the way that doctrine changes over time?

Randall Kennedy's critique of critical race scholarship ("Racial Critiques of Academia") effectively rebuts the claims of identity politics in scholarship (and I would add in judging). But we don't need to surrender entirely the position that someone who can see life and law from the perspective of the average Joe (or Jane) can bring a valuable voice to our nation's highest court. Earl Warren demonstrates that no group has a monopoly on this kind of contribution -- and it may be best to emphasize issues other than race and gender here. But my gosh the hearings have the feel of the pre-1920s, maybe even some pre-Civil War elements.

The image--of John Chipman Gray--is meant to illustrate the formalist era in American legal thought. (I know, I know--we're now questioning whether formalism ever existed. I'll get to Brian's paper one of these days--lots of great stuff to talk about there.)

h/t Ann Althouse.

Full post as published by The Faculty Lounge on July 21, 2009 (boomark / email).