Morgen on July 15, 2009 at 8:47 am
The Federalist Society is hosting a live debate on the Sotomayor hearing amongst a group of both conservative and liberal law professors and legal experts. One of the participants is Louis Michael Seidman, a liberal professor of constitutional law at Georgetown University. Yesterday afternoon Seidman posted a comment that quickly circulated throughout the blogosphere. Here’s a partial quote (full quote at Hot Air):
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.
Seidman later posted a clarification which I find even more enlightening as he is essentially making a point that I’ve been trying to make this week.
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 naÃ¯fs 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.
Other than Seidman’s attempt to lay the blame on Republicans for having put Sotomayor in moral jeopardy, I could not agree more with the sentiments he expressed. I have said consistently since Sotomayor was nominated that I thought her judicial track record was actually fairly moderate. And that she was probably as good of a nominee as conservatives could hope to get from President Obama.
But it is really hard to just sit back and watch Sotomayor proclaiming her absolute devotion to the fidelity and rigidity of the law, in light of the beliefs she has expressed in the past. And I must add, its doubly hard to accept given the criticism we faced after posting her “court is where policy is made” comments on YouTube.
Credit goes to Professor Seidman for his consistency in calling out Sotomayor on this. That’s more than I can say for others.
Update: Let me go on record disagreeing with the sentiment expressed by his “naif” comment as well. (Thanks to John for pointing this out in the comments). In case it’s not clear, I think a strict constructionist position (bordering on originalist) is the correct one with regards to judicial philosophy. But I wouldn’t expect for a second that one of the most liberal presidents in history would nominate someone with this type of judicial philosophy. However, the fact that many liberals can’t be honest about their views, even with a commanding majority in Congress, demonstrates either (a) that they are cowards or (b) that their beliefs are so intellectually and morally bankrupt that they are ashamed to admit them publicly. And I think this is what really frustrates a true believer like Professor Seidman.