Elaborating on his strong words about Judge Sotomayor's hearing performance, Georgetown law professor Louis Michael Seidman writes:
I want to elaborate on some of the (perhaps intemperate) comments I made last night. There's no denying that Republicans on the committee put Judge Sotomayor in a difficult moral position, and I need not elaborate on their own culpability for doing so. Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake. To his tremendous credit, President Obama has made an effort in his public statements to shift the official ideology of judging so that it has some contact with reality. Yesterday, Judge Sotomayor explicitly repudiated the President. Here are some of the consequences of this kind of unilateral disarmament:
1. It means that the only people who end up on the Supreme Court are either naïfs or cynics.
2. It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.
3. Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.
The pity is that all of this was probably unnecessary. The Democrats have sixty votes in the Senate. It would have taken some courage for Judge Sotomayor to have told the truth, but not much. She said yesterday that judges should never decide cases out of fear. Yesterday, she testified out of fear. We have a right to expect better of her.
Radford University's Matthew J. Franck replies:
For my part I find the president's account of the role of "empathy" in judging to be alarming, and I would welcome Judge Sotomayor's repudiation of his arguments—if I believed her. Frankly, I don't.
I think I know what you mean by the "official version" of what judges do. I agree with you that "applying law to facts" is too simplistic to capture the nuances of what Felix Frankfurter called "judicial judgment." But if it's not where I would stop, it's not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.
Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.