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Sotomayor: The Umpires Strike Out!

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With Sonia Sotomayor's swearing in over the weekend as an Associate Justice of the U.S. Supreme Court, legal experts are aggressively debating what was learned from her four days of grueling testimony before the Senate Judiciary Committee - and even whether these hearings are instructive or merely Capital Hill's version of Kabuki Theater.

The nomination of the court's first Latina member - and only the third woman to serve on the nation's highest court -- was confirmed by the U.S. Senate last Friday by a vote of 68-31, with all Democrats voting "aye" and nine Republicans bucking their Party's line to do likewise. She was sworn in by Chief Justice John Roberts on Saturday.

The widely accepted morning-after view among legal scholars is that Sotomayor's confirmation hearings were more about politics, campaign endorsements, and financial contributions than about the business of judging. And a jingoistic attempt to exploit the obviously deep divisions within our society.

Amidst a torrent of thinly veiled Republican accusations that her off-the-bench speeches suggested she would be a "judicial activist" on the high court - tempered only by their fear of offending Hispanic voters -- she was questioned about only two or three actual cases.

Those cases were at the top of the GOP playbook: Gun ownership, property rights, reverse discrimination. The consensus is that Sotomayor persuaded most observers that she was following precedent - which is what an Appeals Court judge is supposed to do. But she also and totally predictably ducked many questions and bobbed and weaved around many others.

If we expected to actually learn very much about Sotomayor's "judicial philosophy," we were bound to be disappointed. The overarching mission of the "Murder Boards" who prepped her for these hearings was to avoid as many specifics as possible. For that, she got an "A".

Sadly, from the Democrats, there were largely softball questions, punctuated by lavish praise for Sotomayor's personal story and her "mainstream" legal philosophy. Arguably, the most penetrating questions came from Senator Russ Feingold of Wisconsin. When he got no straight answers, his frustration seemed palpable.

But Republican Senators, evidently chagrined at being unable to hit a home run based on the nominee's judicial record, turned to The Nation's Pastime.

The baseball analogy has become widely used by nominees ever since now-Chief Justice John Roberts famously stated at his own confirmation hearings in 2005: "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules."

But a number of legal scholars we contacted expressed dismay at the use of a baseball analogy to define a jurist. To many, this represents the ultimate dumbing down of jurisprudential thinking. They ask why, if judging were only about balls and strikes, why would we need nine Justices, why would we so often have cases decided in five to four decisions, and why would so many Supreme Court rulings be reversed by later courts?

Nonetheless, the baseball analogy persisted throughout the hearings and in the vote on the Senate floor. SCOTUS (Supreme Court of the United States) Blog, a widely respected online report about the High Court's decisions, wrote that the Senators used the phrase "balls and strikes" at least 11 times, and "umpire" or "umpires" 16 times.

For example, Senator Jeff Sessions of Alabama, the highest ranking Republican on the Judiciary Committee, said that if a judge had a personal or political agenda, "Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other."

But Senator Sheldon Whitehouse of Rhode Island countered with, "I particularly reject the analogy of a judge to an 'umpire' who merely calls 'balls and strikes'. If judging were that mechanical, we would not need nine Supreme Court Justices."

His conclusion is borne out by two centuries of Supreme Court rulings reaching different conclusions in the same cases and of majority decisions later being reversed. Just two areas -- civil rights and equal protections under the law -- provide ample illustrations.

In a civil rights case called Dred Scott v. Sandford in 1857, the Court ruled in a 6-3 decision that people of African descent imported into the United States and held as slaves were not protected by the Constitution and could never be citizens of the United States. But a later Court ruled that at least one part of it had already been reversed in 1868 by the Fourteenth Amendment, which gave equal protection of the law to everyone.

Legal scholars mostly agree that the Dred Scott decision was the worst in the history of the Court. The majority opinion was written by Chief Justice Roger B. Taney. Ironically, Taney said "Slavery is a blot on our national character, and every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away..." But at the same time, he asserted that "All blacks- slaves or not... were not and never could not be citizens.

But perhaps the most telling example in the civil rights sphere is the Court's ruling in Plessy v. Ferguson in 1886. In a vote of 7 to 1, the justices ruled that states could force railroad companies to exclude African-Americans from first-class, or "ladies," cars. The case deprived African Americans of equal protection under the 14th Amendment and gave judicial sanction to the doctrine of "separate but equal."

Justice John Marshall Harlan, a former slave owner who decried the excesses of the Ku Klux Klan, wrote a scathing dissent. He wrote, in a leap of wishful thinking, "... in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law."

Legal experts ask, "If they were all umpires, why did one - the only Southerner and a member of a prominent Kentucky slave-owning family - dissent?"

It would not be until the mid-20th Century that these decisions would begin to be reversed, the most sweeping being a unanimous 1954 landmark ruling in a case called Brown v. Board of Education of Topeka .The Court struck down Plessy's "separate but equal" doctrine. The Justices concluded "that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." The opinion spurred a social revolution.

And the issue of equal protection led to the historic 1973 decision in Roe v. Wade, which made abortion legal. In a 7-2 vote, the court's majority said the 14th Amendment's due process clause guaranteed a woman's right to privacy and to end a pregnancy - though neither abortion nor privacy are ever mentioned in the Constitution. Subsequent decisions have chipped away at this protection - for example, banning "late term" abortions -- and most Conservatives continue to push for a total reversal.

Once again, did the seven umpires know something that their two brethren did not?

A number of prominent legal experts have weighed in with us on the "balls and strikes" analogy.

Chip Pitts, A Lecturer at Stanford University Law School and president of the Bill of Rights Defense Committee, told us, "Notwithstanding the current public triumph of the 'umpire' metaphor, judging usually isn't a matter of objectively and passively applying a simple rule from a single rulebook to a specific set of facts. Judging real cases at this time of great social and technological change -- especially cases of the sort that make it to the U.S. Supreme Court, involving complex disputes over meaning, sources of legal authority, and application to facts -- cannot possibly be crammed into such a formalistic box without doing great damage to both truth and justice."

"We now know from science as well as experience that markets aren't always 'efficient,' that legal rules and their meaning (including that elusive, so-called 'original intent') aren't always 'clear,' and that reason and emotion are inextricably intertwined in decision-making. That doesn't throw judges back on the pile heap of radical subjectivity, where anything goes; but regardless of Justice Sotomayor's distancing herself during her hearing from emotions and empathy, it does mean that they play an indispensable role in good judging, by helping (like weights on a scale) to calibrate judgments."

And he adds, "Empathy, by the way, is not the same thing as prejudice. The former represents an opening to greater understanding, while the latter capitulates to ignorance and thus blocks genuine understanding."

"The irony" he points out, "revealed by Justice Sotomayor's record, is that in her reluctance to consider global sources of law and in other respects, she seems much more conservative than either conservatives or liberals currently appreciate. Expect to be surprised."

Marjorie Cohn, president of the National Lawyers Guild, told us, "Since he was confirmed to the Court, Roberts has behaved more like a radical right fielder than an umpire. He routinely favors corporations over individuals, and prosecutors over criminal defendants. Roberts is doing his best - quite effectively - to shape the Court into a reliable tool to further the right-wing agenda."

Prof. Peter M. Shane of the Ohio State University law school told us, "The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous."

He said, "The right-wing has so successfully animated the public fear of 'judicial activism' that any candid admission that the act of judging involves actual judgment is regarded as politically fraught. This is especially regrettable because the GOP's only definition of judicial activism seems to be "judicial decision making at odds with the Republican Party platform."

And he added, "Comparing the hearings to Kabuki Theater is rather insulting, I fear, to Kabuki Theater."
"Chief Justice Roberts has actually been relentless in his attempt to shift the Supreme Court towards a socially conservative, pro-business, anti-egalitarian view of the law that is utterly at odds with the spirit of genuine constitutionalism. Justice Scalia seems personally bent on rewriting entire swaths of the constitutional law of criminal procedure," he said.

On the subject of "judicial activism," he said, "You need go no further than Bush v. Gore or District of Columbia v. Heller for iconic examples of what it looks like in its right-wing form. If, as many fear, the Supreme Court next year creates new political expression rights for corporations -- corporations!! -- you will see it again."

But he injects a cautionary note: "I do think, however, that simply shouting, 'Judicial activism!' at the right is no more a real argument than shouting, 'Judicial activism!' at the left. What ought to count is whether a legal opinion offers the most compelling view of the Constitution in light of its text, history, prior judicial interpretation, and current understanding of the country's needs. A lot of what I dislike about right-wing judicial activism is not just its political agenda, but its pretense to be true to history -- a history that is often more or less fabricated in order to reach a pre-ordained result."

An arguably even more dire view was expressed to us by Prof. Francis A. Boyle of the University of Illinois law school. Here's what he said:

"Roberts' analogy to a baseball umpire was sheer propaganda designed to mask his hard-line movement commitment to accomplishing the agenda of the Federalist Society, of which he was a member despite the misrepresentation he made to the Senate Judiciary Committee to the contrary, which was illegal. The Federalist Society is a gang of lawyers and judges who are right- wing, racist, reactionary, bigoted, sexist, war-mongering, elitist and totalitarian. For example, Feddie lawyers were responsible for the Bush Administration's torture scandal. Right now, there are four die-hard Feddies on the U.S. Supreme Court: Roberts, Alito, Thomas, and Scalia, the Four Horsemen of the Apocalypse."

He continued: "Reportedly (Justice) Kennedy was also affiliated with the Feddies, but he breaks from their ranks from time to time, thus producing the well known 5 to 4 majorities gravitating back and forth between the two wings of the Court. There is no 'liberal' wing of this Court. For the media to apply the word 'liberal' to Souter and Stevens and Breyer just indicates how far to the right the Court has been moved deliberately since Nixon became President, followed by his Republican successors."
President Bill Clinton, he says, "did little to redress the balance, though to be sure Justice Ginsburg is the only person on the Court who has had extensive experience standing up for the common people of this country, to her great credit."

But he doubts that Sotomayor is "in the mold of Justice Ginsburg." He says, "She very well could be somewhat to the right of Justice Souter, especially when it comes to protecting the interests of big business and further whittling down the constitutional rights of criminal defendants -- she started her career as a prosecutor. It appears that Obama picked her in order to pay off his debt to those Latino/as who voted for him in 2008, and to consolidate Latino/a support for 2012."

Boyle sums up: "Supreme Court nominations and confirmation hearings are all about politics and economics, not calling balls and strikes. And Supreme Court Nominees are by nature political animals: Indeed it was 5 Republican Justices who unconstitutionally installed George Bush Jr. as President of the United States in 2000, thus giving America the most disastrous Presidency since the dawn of the nineteenth century."

And he predicts that the next Supreme Court nomination battle "will be even more vicious given what is at stake: the very future of this country as a constitutional democracy with a commitment to the Rule of Law. I kid you not. The Boumedienne decision upholding the writ of habeas corpus for those on Guantanamo was only 5 to 4 -- a near-death experience for the Constitution. Souter was part of that majority."

About Justice Sotomayor, he says, "I cannot predict with any degree of certainty how Sotomayor would have voted. So the very future of this Republic hangs by a perilous thread in the Supreme Court. And the constitutional law teacher Obama seems to be more interested in playing politics as usual than in dismantling the American Police State erected by the Bush Jr. administration and its Federalist Society lawyers and judges starting with the USA Patriot Act."

But criticism of the baseball analogy is not limited to progressives. Bruce Fein, a Conservative civil libertarian who served in the Department of Justice under President Ronald Reagan, told us, "The umpire metaphor of the task of a Supreme Court Justice is juvenile. There is no moral or philosophical element in calling balls or strikes--no more so than in calculating the circumference of a circle."

He explains: "Constitutional law and constitutional interpretation, in contrast, pivots on a Justice's philosophy about the meaning and purpose of constitutional restraints on the political branches of government as deduced from the words, practices, and unwritten expectations of the Constitution's makers. That leaves substantial legitimate latitude for any Justice because the Founding Fathers were blurry about the matter."

"For example, a Justice who believes that the makers intended the constitutional amendment process to be employed to overcome oversights or unexpected changes in the political landscape as opposed to enlightened and independent judges will naturally be loath to read anything more into the Constitution's text than the bare minimum. But a Justice who subscribes to the view that the Constitution's makers intended the judiciary to be the prime headwind against impetuous and myopic Congresses and Presidents will readily embrace latitudinarian interpretations of the text to fulfill the judicial role and blunt the political branches, he says.

"Confirmation hearings are constructive and educational only to the extent the nominee is forced to elaborate on his or her convictions about the role of the judiciary as opposed to alternate constitutional vehicles in curing, preventing, or arresting moral or other evils," he says, then asks:
"It is ridiculous, but once one acknowledges that, what role remains for the Senate?"

Others are also questioning the role of the Senate. Shayana Kadidal of the Center for Constitutional Rights, a civil liberties advocacy group, is among them. He told us, "In many other countries, the top judges are civil service appointees who've worked their way up the ladder since their graduation from law school, and thus all have very long judicial records to examine. But beyond looking at their track records, the review process doesn't involve any questioning about judicial philosophy and beliefs. Most of it is well-known and accepted; the focus is on technical competence."

For most of our nation's history, Supreme Court nominees did not appear for grilling by Senators. But that was before television. Today most agree that it is utterly unrealistic to expect politicians to give up a golden opportunity to posture before the cameras for headline-making political theater.
For Senators, all the world's a stage!