Feeds: 
symbol identifies content for paid subscribers only.
THE DISHONESTY OF "OBJECTIVITY".
Via Paul Campos, conservative law professor Louis Seidman accuses Sonia Sotomayor of dishonesty:
Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith.Seidman is accusing Sotomayor of dishonesty, and I think he's right: Sotomayor has been saying what she needs to say, backtracking on her previous insights, in order to get confirmed.
But here's the thing: In order to be dishonest, Sotomayor has to know better. What's astonishing about the conservative justices on the court is that they genuinely believe that judging is no more than "applying the law to the facts". Seidman should be less frustrated with Sotomayor--whom he assumes knows the truth--then he should be with
UPDATE: My mistake, Seidman is a liberal, not a conservative. I'm a little frazzled with following the hearings and blogging. I also want to add this comment from Campos:
The most cynical view of judging is that judges consciously manipulate the indeterminacy generated by the lack of consensus on questions of legal ideology in order to enforce their preferences as a matter of political ideology. For what it's worth, I believe that very few if any judges do this consciously, although plenty of them do it unconsciously.
I think there are very few people who wake up every day and tell themselves they're being dishonest. But that doesn't mean judges should avoid questioning their personal biases and how they might affect cases -- that's what Sotomayor was arguing, and it's something she's had to walk back to a degree because conservatives are certain that there's only one way to interpret the law. It's also easy to see why this is an attractive idea -- it's easy to see how accepting Sotomayor's view could not only erode a judge's faith in their own decisions, but society's faith in judges.
-- A. Serwer
COMMENTS (10)
Seidman is actually fairly liberal (and an Obama supporter). No doubt he's equally disgusted with Roberts's balls-and-strikes analogy.
Posted by: jw | July 15, 2009 12:57 PM
I have to disagree. It's not that Roberts and the other conservative judges don't know better. Of course they do. The difference is that they believe their own presuppositions, assumptions and moral judgments can supercede application of law to facts because they are not ideological, but as Eugene Robinson puts it "the natural order of things". It's not a lack of self-awareness, but abundance of arrogance.
Posted by: lindy | July 15, 2009 12:58 PM
I don't actually believe that the Republican nominees don't know better. They do, on the whole, appear less willing to admit to the public that judging at the appellate level includes subjectivity, they may be more openly disdainful of approaches to constitutional interpretation that they regard as "less objective", and perhaps you're right that they're even less honest with themselves about what's involved in judging cases. And they also appear more inclined to accept the view that stare decisis shouldn't stand in the way of reversing a precedent, no matter how old, that they deem wrongly decided. (But if that never happened, Plessy might still be good law.)
I personally find it more interesting to read political scientists speaking about the Supreme Court, rulings, precedents and policies, than most law professors, as it seems to me that the court is more understandable when approached as a political entity. There is a charade followed by many law professors whereby the Court is supposed to be non-political, and some very political decisions are analyzed and justified on the basis of their supposed adherence to the "letter of the law", "original intent" as divined by the professor, a clumsy, politically partisan "history" of laws or constitutional language, etc.
But none of that explains why a judge or Justice who advocates a particular approach (e.g., textualism) and is scornful of judges who take different approaches to constitutional or statutory construction, suddenly switches horses when he finds that his "preferred" approach doesn't lead to the outcome he wants, and suddenly (situationally) finds merit in a manner of constitutional interpretation that produces the desired outcome, or why a judge scornful of certain constitutional provisions might suddenly (and similarly situationally) find them compelling when necessary to achieve a particular outcome (e.g., Bush v Gore).
Posted by: Aaron | July 15, 2009 1:23 PM
"the conservative justices ... genuinely believe that judging is no more than "applying the law to the facts". "
Um, yeah. I don't think this is true. They're pretending just like everyone else. For these guys, the ongoing debate about conservatives -- stupid or venal -- is easy. Not a one is stupid.
Posted by: JIm Pharo | July 15, 2009 4:59 PM
I love air jordan shoes.
Posted by: air jordan shoes | December 3, 2009 9:15 PM
Thank you for the sensible critique. Me & my neighbour were preparing to do some research about that. We got a good book on that matter from our local library and most books where not as influensive as your information. I am very glad to see such information which I was searching for a long time.This made very glad Smile
Posted by: Abercrombie Fitch | December 13, 2009 9:31 PM
ugg boots sale-Warm ugg boots for all the family remain at the heart of our collection,find your favorite UGGs from stunning designs-ugg boots uk
Posted by: ugg boots uk | December 15, 2009 10:54 PM
Famous top quality Uggs with great discount are On Sale.
We are the best Ugg Sale online store.
Posted by: ugg boots sale | December 16, 2009 4:21 AM
I really appreciate the kind of topics you post here. Thanks for sharing us a great information that is actually helpful. Good day!3333
Posted by: Links of London jewelry | January 12, 2010 11:57 PM
We are air max sale Online Shop,offer new branded
air max 90
Posted by: airmaxsale | January 22, 2010 8:28 PM