Tuesday, July 14, 2009

Facts and law, that's all

Judge Sotomayor, like Chief Justice Roberts and others before them, said she’ll look at the facts and apply the law to them to decide the cases before her. She and her predecessors told the truth, but not the whole truth, despite their oaths. Sins of omission, not commission, if dissembling before Congress is a sin.

No person, no lawyer, no judge perceives the world as an automaton: input, computation, output. Were that the case, there would be no need for courts. Think about it. I have a dispute with you. You look at it differently. Instead of fighting, we look to the law. If everyone thought the same, we’d do the calculus ourselves and resolve our differences. End of matter.

John Roberts comes from an upper class, white/Anglo-Saxon background . Sonia Sotomayor comes from an ethnic, economically disadvantaged background. Both are very smart and flew though their professional paces leading to the Supreme Court. Thurgood Marshall and Clarence Thomas, in the event you hadn't noticed, share an ethic background. But they have distinctly differing societal influences, resulting in markedly different approaches to their work as justices.

Each of them, and any other judge, brings different worldviews to the Court, to ignore that they do by saying that where they come from and how it has influenced who they are will have no effect on how they go about their job, is patently stupid.

Confirmation hearings are theater, staged to play to the already decided. Honesty does not fit within the story. Too bad.


Life Hiker said...

Well, we do get to view the players in the Kibuki go through their paces, play their roles. That still tells us something about them.

Wes said...

Someone wiser than me said, "Waitaminnit - Sonia Sotomayor has race and gender, but John Roberts doesn't?"


hereinfranklin said...

I agree with you completely. It seems like a big dog and pony show for nothing. And if our backgrounds and experiences don't shape our thought processes, what does?

BTW--the links aren't working...at least on my work IE browser.

Frogette said...

Confirmation hearings are theater, staged to play to the already decided.

I couldn't have put it any better!

The Curmudgeon said...

"If everyone thought the same, we’d do the calculus ourselves and resolve our differences. End of matter."

Actually... we do. Sometimes, as lawyers, we have to help our clients do the math -- but, eventually, the vast majority of cases settle without trial. Why? Because we have done the calculus ourselves and resolved the differences.

"No person, no lawyer, no judge perceives the world as an automaton: input, computation, output."

Well, no -- and yes.

At the trial and intermediate appellate levels, there should be a fairly predictable outcome no matter who is presiding or what their politics. Disputes arise because we don't agree about which facts are really important (or, in our language, which facts are dispositive).

The law should sort that out. A rock-ribbed Republican judge and a wild-eyed liberal Democrat judge should, in the lower courts, reach the same decision given the same facts. (I am talking about a judge interpreting a statute or applying it to a set of given facts, not about, for example, a judge calculating damages in a PI case as a finder of fact.) The difference in the usual case is that one judge may be happier than the other about the outcome. I recall fondly a judge who -- because I worked for insurance companies -- ruled against me at every opportunity. He'd come to really dislike insurance companies while in private practice -- and probably for good reason. Anyway, at contested hearings, when he came out and told me what a good job I'd done, what a fine brief I'd written, what a strong argument I'd made, I knew I'd lost. But when he came out red in the face, curt, even angry, I knew I had a shot: He couldn't find a way out of ruling in my favor.

I think it's rare that in any given case there would be two or more competing lines of precedent from which a judge, sitting in a lower court, could legitimately choose.

This is not the case, however, in state supreme courts or SCOTUS. It's really hard to predict how any person will react when given the opportunity to create new precedents. Just ask the Shade of Dwight Eisenhower about Earl Warren. This is where background and worldview and philosophy and life experience and all that good stuff really comes in -- but nobody (including you and me and Justice-to-be Sotomayor) who's never been in that position can really say, with certainty, how we'd apply these factors in given cases.

Dave said...

I hate that Curmudgeon thinks and writes better than I do.

But, you are more trusting of trial and appellate courts than I am.

In my defense, I skipped them in my analysis; and, you are right, we as lawyers settle much of what comes to us. And the law is normative. We talk to and advise our clients based on that, including the wild childs of the judiciary.

But, I think your last paragraph agrees with me. When a judge is not obliged to rule based on what has happened before and above him or her, the judge does bring his or herself to the question.

eda said...