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Law and ideology

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Con law professor Louis Seidman:

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. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

(This is from live blogging of the Sotomayor testimony. I don’t know how to link to the quote itself).

Seidman is a standard issue liberal con law professor btw, so I’m sure he was just as appalled by John Roberts’ ridiculous claims that judging is like calling balls and strikes etc., i.e., this isn’t just some disingenuous right-wing diatribe.

Anyway, a couple of reactions:

(1) I’m not as confident as Prof. Seidman that Sotomayor and Roberts and the rest of them are lying when they describe adjudication as much more strongly constrained by formal rules than he believes it to be. I agree with Seidman that such descriptions are deeply unrealistic, but on the other hand, to paraphrase Upton Sinclair, it’s remarkably difficult to get people to understand things when their professional identities depend on them not understanding them. You can call that “living a lie,” or “getting over” or whatever, but I believe the traditional description is “thinking like a lawyer.”

(2) To say that judging is inherently ideological can mean various things. I think it’s useful to distinguish between legal ideology and political ideology (of course there’s a lot of inevitable overlap between such categories). To simplify, political ideology is reflected in beliefs such as “affirmative action is bad,” or “abortion should be legal,” while legal ideology is reflected in beliefs such as “courts should generally defer to majoritarian politics,” or “the plain meaning of a statute should be preferred to legislative intentions regarding its meaning.” In my view adjudication in our system has to be ideological in the latter sense, because there’s no consensus within the system about all sorts of questions of legal ideology.

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.

Basically, being a federal judge, and especially being a member of the SCOTUS, probably requires that one not admit to oneself a whole lot of things about the actual nature of the enterprise. In that sense it’s like any number of other social roles.

Update: Daily Beast article on this (I didn’t choose the title).

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