Two Cracks to Slip Through

Wednesday, July 15, 2009

A venomous rant by Maureen Dowd shows us exactly how and why Judge Sonia Sotomayor's opponents haven't a prayer of stopping her from reaching the Supreme Court -- barring a "meltdown" on her part or a near-miraculous epiphany about the proper role of a Supreme Court justice on theirs.

Two popular misconceptions -- one about the proper, non-cognitive role of emotions and one about the proper role of a Supreme Court justice -- are shared by her proponents and opponents alike, shielding her from the criticism she deserves now.

First, we have the soul-body dichotomy, which manifests here as the notion that reason and emotions are opposites, and that our choice between them is either-or.

Despite the best efforts of Republicans to root out any sign that Sonia Sotomayor has emotions that color her views on the law, the Bronx Bomber kept a robotic mask in place.

A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up.
Don't get hung up on the sexist and racist slur against males of European descent. That's just a smear against Dowd's real targets -- people having Western values. She makes her smear by arbitarily equating them with various negative stereotypes of Republicans. (Why else would race and sex matter?) The important thing here is the glee that Dowd shows about how easily -- if we take her assessment at face value -- that Sotomayor is foiling the Republican attempts to call her out on a vice that Dowd herself admits she has. Sotomayor is succeeding simply by acting "robotic."

How robotic? Take a gander:
She even used a flat tone when talking about the "horrific tragedy" of 9/11, when she was living near the World Trade Center.
Even setting aside the mislabeling of this atrocity as a "tragedy," this is bizarre. Did this not anger and frighten Sonia Sotomayor, herself? Does Judge Sotomayor not care about the victims of those events? And is she not confident enough in the justice of the laws and founding principles of this nation to think that, within her prospective role as a Supreme Court justice, she would be doing her part -- whatever her decisions -- to ensure that America remains strong enough at least to live to fight another day?

The ease with which Sotomayor's ruse seems to be working can be explained by the acceptance on both sides of this debate of the soul-body dichotomy. Both see reason and emotion as opposites, with each side paying lip-service at different times to the idea that either reason is man's tool of cognition or that emotions are. This time, the conservatives are holding the banner of reason (although often upside down), while the left believes emotions are needed in applying or interpreting the law.

So the conservatives are parroting without grasping the content of charges like those made by ARI's Tom Bowden that Sotomayor is unqualified for this position due to her belief that objectivity and impartiality are impossible. They know enough to try to trip her up on the grounds that she will rule based ultimately on her emotions, but, failing to understand the true nature of emotions, don't see her iciness as the red flag that it is.

Emotions are not tools of cognition, but they do reflect one's values and motivate one's actions. A sitting judge must apply logic rigorously to all questions that come up, but this does not preclude anger at massive injustice or harm to the country one is sworn to protect. Reason and emotion can and -- when one's principles are objective -- will end up on the same side.

And that brings up the second point.

The soul-body dichotomy is just the start of the difficulties of Sotomayor's senatorial adversaries. The other "crack" our suddenly snake-like nominee is slithering through is that between originalism (which is widely mistaken for judicial objectivity) and "legislating from the bench" (a dangerously imprecise term for non-objectivity). Besides explaining this better than I could, Tara Smith succinctly shows why this is happening:
While each of these reasons may help to explain Originalism's appeal, none of them captures the heart of the issue. The deeper reason that Originalism will not die, I think, is that it has staked out the moral high ground, championing the objectivity of interpretation that is essential to the ideal of the rule of law. Anything other than fidelity to the written words, it seems, surrenders us to the rule of mere men (the individual justices on the bench).

Or so things would appear.

What I will suggest is that the very objectivity which explains Originalism's appeal is misunderstood by Originalists themselves. And part of the reason that criticisms have not inflicted more crippling damage is that the leading alternatives also suffer from confusions about appropriate standards of objectivity in the legal domain -- which many people sense, I think, and which sends them back to the apparently safer harbor of Originalism. [bold added]
Writing elsewhere, Smith notes a big problem with originalism:
The charge of "judicial activism" typically condemns proper activity on the part of judges along with improper activity. It has become dangerously commonplace to equate a judge's support for overturning a law with pernicious activism. Prevailing wisdom holds that we can identify "activists" simply by counting up the number of times a judge rules against existing laws or government practices. Notice that by that logic, the only way for a judge to avoid overstepping his authority is to engage in no activity--to simply rubberstamp whatever the legislature and other agencies of government serve up. What, by this reasoning, is the point of having a Supreme Court? Some laws should be struck down. ... Judges who so rule are acting responsibly and fulfilling their function. [bold added]
And she later explains what ought to be going on in hearings like this:
The salient question in assessing any nominee, then, is not whether a judge takes action, but the factors that guide his actions. To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts: First, that individual rights are broad principles defining the individual's freedom of action. The familiar rights of life, liberty, property and the pursuit of happiness subsume a vast array of particular exercises of this freedom, some explicitly named in the constitution (e.g., the freedom of speech) and some not (the right to travel). Second, he must understand that the government's sole function is to protect individuals' freedom of action. As Jefferson explained, it is "to secure these rights, [that] governments are instituted among men." Third, he must recognize that our government properly acts exclusively by permission. Articles I, II and III specify the powers of the three branches of government and the 10th Amendment expressly decrees that powers not delegated to the federal government are reserved by the states or by the people. The government, in other words, may do only what it is legally authorized to do. [bold added]
But for this to happen, someone in the Senate needs to understand what qualifies someone to sit on the Supreme Court. Until then, Dowd will get to crow about her inept heroine parrying even more inept blows:
The judge's full retreat from the notion that a different life experience is valuable was more than necessary and somewhat disappointing. But, as any clever job applicant knows, you must obscure as well as reveal, so she sidestepped the dreaded empathy questions -- even though that's why the president wants her.

"We apply law to facts," she told Kyl. "We don’t apply feelings to facts."
To an originalist, that reply is the sound of the oven timer going off. To someone interested in objective law who understands that the law must sometimes be interpreted in light of objective principles, that's the signal that some more time and a thermometer are needed for that goose.

During the rest of her column, Dowd wallows about in her smear of "white Republican men," making the point that many Republicans are, under the skin, also really just fellow emotionalists. (I agree with her there.) Her point in doing so is to is to make sure that reason never rears its head -- ugly to her -- as a serious threat to the left again. She wants us all to think -- no, to feel -- that objectivity is a mere figment. (I emphatically and confidently disagree with her about that.)

-- CAV


: (1) Corrected a typo. (2) Added hyperlink for "soul-body dichotomy." (3) Changed "ruling from the bench" to "legislating from the bench."


Vigilis said...


Excellent points! But the Sotomayor appointment opens up nominations to non-lawyers it would seem:

"To be qualified to sit on the Supreme Court, a person must, at minimum, understand three basic facts..."

Precisely. Lawyers should not enjoy their current Supreme Court monopoly. As long as the chairman of the Senate's Judicary Committee is a lawyer, however, and nonlawyers on that committee are outnumbered two-to-one, we will have a lawyer dominated, corrupted and appeasing government.

Just a thought.

Gus Van Horn said...

If I recall correctly, one needn't necessarily be a lawyer to become a Supreme Court justice.

Be that as it may, and as I have said here before, there is nothing inherently wrong with the legal profession, although many lawyers seem to be working overtime to give it a bad name.

The problem is that most lawyers, and particularly legislators, do not have the requisite convictions or principled approach that their profession (or, indeed any profession) demands.

Mike said...

The legal profession is a cesspool. I know because I'm mired in it. I am fortunate enough to have a legal job that "ends at 5pm," and that is by far the exception. Your average J.D. grinds out soul-crushing work for clients he wouldn't trust alone in a room with a $5 bill, and he does it for 65-70 hours a week and bills for 110. If he fails to "find" enough billable hours, he'll be quietly shown the back door at Biglaw and end up searching for work with a $1200 student loan payment punching him in the junk every month. Alternatively, he works for the public defender's office in Squadoosh County, Iowa, earning $35k a year and having the government pick up his student loan payments... only 23.5 years til daylight! Yee-haw!

The biggest mistake I ever made was going to law school. Now that it's done and over, I'm making good and sure to monetize that knowledge and credential, but if I had it to do again, it would not be a close decision.

Gus Van Horn said...

Well, the legal profession's losing a good man.

That said, your comment shed some light on why it is so bad and might be getting worse. Who would put up with either of those things besides opportunists or committed altruists?

Not too many of the good kind of people we need.

madmax said...

"Who would put up with either of those things besides opportunists or committed altruists?"

This is so true. I worked in a corporate law office for a number of years. There was nothing but pragmatists there. No one questioned the morality of the laws they were obeying or trying to circumvent. And sadly, corporate clients were the most anti-principle of all. I was thinking of going into law and that experience changed my mind. Most of the lawyers who were in their mid 30s looked like they were in their early 50s. And the obsession with "billable hours" turned my stomach.

All this is enabled by non-objective laws which are ultimately the product of altruism. I remember keeping a tally once of the work I was doing and I went for nearly two months working on cases none of which involved a legitimate law. They were all based on initiatory force.

Being a legal practitioner is a tough job for a committed Objectivist. So little of what you do involves the "world as it ought to be." A legal scholar on the other hand wouldn't be a bad choice if a person is prepared for the academic world which, again, is no bed of roses for an Objectivist.

Gus Van Horn said...

Your further account is eye-opening to say the least. I think I would be very angry to go through law school only to find THAT at the end of it.

Mo said...

I'm not sure I understand the soul-body concept. How would you need emotion in order to use reason. I thought reason was arrived at using a logical series of investigations and research. so why would you need to be emotional. wouldn't that make you impartial and unobjective. I'm rather confused

Gus Van Horn said...

All I'm saying is that being rational does not preclude having appropriate emotions.

It is perfectly rational, for instance, to be indignant and angry about the atrocities of September 11, 2001. One can express or acknowledge such emotions while still demonstrating that one is not overcome by them.

On such a basis, Sotomayor's iciness might possibly look fake -- I have not watched any of this, so I don't know one way or the other -- and cue a further line of questioning.

One might, on such a basis, try, say, to bring her out by obnoxiously hammering on some hot button issue or other of hers. Or one might ask questions pertaining to her legal opinions about various legal maneuvers (legitimate or not) by the Bush administration after the attacks.

The point here is that it is phony to pretend that one has no emotion. That is NOT the same as checking emotions at the door when rendering a legal opinion.

Mo said...

thanks for clearing that up Gus. Meanwhile I'm having a debate with aguy on facebook about Capitalism. He seems to have correctly identified that political-economic systems do not exist in a vaccuum but he has got the wrong impression. I've pasted his (if you don't mind) below:

"capitalism (and its libertarian interpretation) is at its core about the individual right to spend his life in pursuits of gaining a material return bigger than that which he has contributed; to create material value for himself at a greater rate than natural law truly allows.

It glorifies the hoarding instinct in man and belittles the community instinct.

Political systems devised exclusively from this core idea are by their nature finite, as natural resources are finite. Free market capitalism without moral underpinnings is what led us to where we are today."

it sounds like libertarian socialism to me.

Gus Van Horn said...

Sure, Mo.

And not only hasn't man any instincts, we have never HAD capitalism (and have been nowhere close for almost a century) and if we had, it wouldn't have created this mess.

Neil Parille said...

I think Smith is rather caricaturing originalism and anti- judicial activism here.

She also says, "Second, he must understand that the government's sole function is to protect individuals' freedom of action." I happen to agree, but that certainly is not the philosophy enshrined in the Constitution. It wasn't the philosophy of Thomas Jefferson, contrary to what Smith seems to think.

Gus Van Horn said...


(1) I doubt whether a peer-reviewed journal like the Duke Journal of Constitutional Law and Public Policy would be interested in publishing a paper based on a mere caricature.

That said, from the reading I have done in that article as well as after having heard her speak, I suspect she understands originalism better than many of its adherents.

(2) I disagree with you, but I we're had at least one conversation like this before. (See specifically my comment (1).)

Jefferson may have made mistakes, and he may have been inconsistent in certain respects, but fundamentally, he (and most of the other Founding Fathers) was on the side of individual rights.

It is not the exact words used by any given thinker by which we understand his philosophy, but their meanings, as well as the implications of those teachings and what they lead to when practiced by adherents of that thinker's ideas.