THE SOTOMAYOR CONFIRMATION : SHOULD WE EXPECT OUR JUDGES TO BE COWARDS?

AN ESSAY

I have little doubt that the Senate will confirm Judge Sonia Sotomayor as our next Supreme Court justice. I make this judgment on purely political grounds. After all, the power to confirm “Judges of the supreme court” lies with the Senate (see U.S. Const., Art. II § 2, cl. 2). And if history is any guide, it shows that the Senate party in power wins the confirmation fights. When the Republicans controlled the Senate, they easily overcame Democratic resistance to appoint fellow Republicans Chief Justice John G. Roberts (78-22) and Justice Samuel A. Alito (58-42). Now, the Democrats control the Senate by a healthy majority. They will similarly endorse their fellow Democrat, Judge Sotomayor. This has little to do with legal ability, conscience, honor or principle. It is all about politics. If you have more votes than the opposition, you win. If you don’t, you lose. If Plato were nominated to the Supreme Court by a Democratic President and the Republicans controlled the Senate, he would not be confirmed.

But of course the Republican minority will carp in this case, just as the Democrats carped when the Republicans controlled the Senate. It will not affect anything. It will just fill the air with bitterness and resentment; this is Washington and we should expect nothing less. Still, I always find it interesting when politicians bluster in vain because it gives me an insight into their values. Despite Judge Sotomayor’s obvious “Supreme Court pedigree” (i.e., she went to a top-tier law school; she got good grades; she clerked for the right federal judge; she served as a lower court judge; she curried enough political favor; she never went to prison or owed excessive debt), Republicans nonetheless will find issues to whine about. It is as predictable as the rain.

In a New York Times article today (Sotomayor’s Sharp Tongue Raises Issues of Temperament, May 29, 2009), I read that the Republicans find fault with Judge Sotomayor’s “sharp tongue.” According to several lawyers who practice before her on the Second Circuit Court of Appeals in New York, Judge Sotomayor is “occasionally combative,” “difficult” and “nasty” when she hears an argument she does not like. Some even said she is a “terror on the bench” who “behaves in an out-of-control manner.” This, in sum, has led Republican critics to oppose her “judicial temperament” rather than her intellectual qualifications. In other words, she may be smart, but she is not sufficiently polite to be a Supreme Court justice.

I actually like the fact that Judge Sotomayor volunteers her own opinions from the bench, especially when she criticizes a preposterous argument. I turned my back on the law because it is too technical. I reject its formalism, its inequalities and its vapid, hypocritical rhetoric. I reject it because it grandly claims to serve justice, when it generally only serves power. I reject it because it espouses principle, yet denies it to anyone who does not worship “procedure.” I reject it because it advances order over right, even when right is apparent. I generally despise judges because they buy fully into these hypocrisies to support a fundamentally unfair system. But sometimes judges surprise me. When they actually voice respect for justice and right, they redeem themselves. I even appreciate them when they dare to speak their minds about legal issues rather than merely reference arcane procedural rules to avoid the obvious, burning question. See, e.g., F.C.C. v. Fox Television Stations, Inc., Supreme Court Docket No. 07-582 (decided April 28, 2009). Judge Sotomayor does this more often than the Republicans like. This makes her an “activist” and “out of control.” As soon as a judge starts talking about justice, in other words, she has a “problem with temperament.”

What caused the Republicans to question Judge Sotomayor’s “manner on the bench?” They point particularly to her conduct in a recent appellate court oral argument in a case called Arar v. Ashcroft (see video at http://video.google.com/videoplay?docid=1706247655617377220). This is a high-profile case about the Executive’s alleged power to “render” foreign citizens to third-party countries to be tortured for “counterterrorism information.” Mr. Arar is a Canadian citizen who claims he was seized in the United States when transferring to a flight to Canada at an American airport. Arar said there had been a terrible mistake. The agents saw things differently. After a short detention, American agents allegedly sent him to Syria in order to circumvent America’s ban on torture. There, Syrian agents imprisoned him for almost a year and subjected him to various bodily indignities. Finally, they determined he was not a terrorist and sent him back to Canada. Now he sues the American agents who handed him over to Syria, claiming they knew full well he would be tortured there. In response, the United States government denied responsibility and asserted that American courts had no jurisdiction to hear the case because “federal agents” are not liable for “constitutional torts” when “national security and foreign policy” are at issue.

During oral arguments in Arar, Judge Sotomayor questioned the government’s lawyer. She cut him off twice in order to confirm her understanding about the government’s position in the case. She wanted to know whether the United States government truly asserted that American agents face no liability for sending people to be tortured abroad as long as they doctor up some “national security explanation.” This angered Judge Sotomayor for good reason. In essence, the government contended that it was “OK” to render people to countries that allow torture because the Executive has unquestionable “power in foreign relations matters.” Judge Sotomayor did not like that contention. She made her feelings clear that it was an awkward argument to make, especially in a country that professes respect for individual rights and liberties. She did not like the argument that the Executive can “do whatever it wants” simply because it says “national security is at stake.” She thought those sentiments did not sit well with the principles that animate our constitutional system. And because she made her feelings clear, Republicans now call her “sharp-tongued,” “out-of-control” and “nasty.”

Judge Sotomayor won my respect by confronting the government’s lawyer in this case. She was not even disrespectful or “nasty” when making her points. She may have interrupted the lawyer, but she did not insult or humiliate him. That is normal business in American appellate courts. Judges always showcase themselves over the lawyers. The lawyer’s cursory statements simply provide fodder for the judges’ own rhetoric. Judge Sotomayor did the same thing that many Republican judges do every day. But here, she actually took a strong position on an issue that should concern us all: Torture. If a judge does not get passionate about claims that her own government endorses torture, what will spark her interest? Securities fraud? Accounting irregularities? Property disputes? If anything at all arouses a judge’s sense of right and wrong, it should be torture. The United States claims to be a progressive, civilized country that respects rights and laws. Yet torture represents an earlier, not-so-civilized age in which raw, ugly power ruled over principle and reason. America publicly condemns countries that practice torture today. Against this background, if a judge does not fundamentally recoil when confronting allegations that the American government endorses torture, she should be ashamed to call herself a jurist.

This reveals the absurdity in the Republican position. Did they expect Judge Sotomayor to sit inertly by while the government’s attorney tried to justify torture with disingenuous procedural arguments? If they did, what does that say about their values? That torture is “OK” as long as a Republican administration orchestrates it? That “procedure” should win out over “justice?” They would have preferred that Judge Sotomayor said nothing and merely allowed the government’s lawyer to spin his guilty logic. You can even see in the video that the government’s lawyer is uneasy, not just because he is on the hot seat, but because he knows that it is wrong to defend torture. His face contorts. He bites his lip. His eyes dart nervously through the courtroom. When judges confront him about his substantive position, he tiptoes around the real issue and starts talking about procedures and precedents. He cannot bring himself to admit that torture is wrong, yet his demeanor admits it for him. Thus, the contrast between his behavior and his words make him a glaring hypocrite. Only his mechanical legal training prevents him from breaking down altogether. To her credit, Judge Sotomayor showed that she could forgo logic when confronted with fundamental wrong.

She did not sit quietly through this nonsense. No person with a basic sense of justice could have. Yet the Republicans seem to think that speaking out about fundamental injustice makes a judge “out of control.” As soon as a judge departs from vacuous questions about procedure, jurisdiction and statutory authority, she reveals a “poor judicial temperament.” In short, it seems to me that the Republicans want cowardice in a judge. A cowardly judge would allow the Executive to get away with anything. A cowardly judge would resolve a torture case on procedural grounds rather than grapple with fundamental questions of justice. A cowardly judge puts full faith in the “law,” even when the law clearly will not do “right.” A cowardly judge sits by and lets others do the real work later. A daring judge, on the other hand, can at least acknowledge wrong when she sees it and set the country on the right rhetorical path to correct it. I think Judge Sotomayor showed some daring in her exchange with the government’s lawyer in the Arar case.

But in the end, it really comes down to politics. A liberal “daring judge” is a “coward” to conservative eyes, while a conservative “daring judge” is a “coward” to liberal eyes. Here, Judge Sotomayor spoke out about an issue that largely appeals to liberals: The ignominy of torture. Because she spoke out on that issue, liberals label her “daring,” while conservatives call her “out of control.” But if a judge passionately spoke out about an issue dear to conservative hearts, such as “national security,” conservatives would call him “daring,” while liberals would label him “a coward” or “out of control.” Sadly, we see that principle plays nary a role in these judgments. It is simply about who says what, and whether the issue appeals to conservatives or liberals.

Must our judges be cowards? If we adopt conservative rhetoric, judges must be cowards when addressing questions concerning individual rights, dignity and justice. If we adopt liberal rhetoric, judges must be “out-of-control” when addressing questions concerning procedure, unfair power relationships and judicial restraint. If I had to choose, I would prefer a judge to be daring about liberty, dignity, individual rights and justice. Despite all my cynicism and suspicion, I still believe that the Constitution stands for good. I believe that it stands for evolving liberty and gradual improvement in society through advancing principle. I would prefer a judge be passionate about those ideas rather than cowardly and technical. Unfortunately, modern “judicial thought” counsels strongly against “expansive judging” and “unnecessary explications of principle” in court opinions. But why even bother having a Constitution if we do not have daring judges to expand upon the liberties enshrined in it? How do we advance as a society when our own constitutional arbiters take a narrow view on liberty? Should we not expect our jurists to advocate for us, “We the People,” the ones who created the Constitution in the first place? The ones who delegated its authority after the Revolution? If Congress and the President fail us—as I think they did on the torture question in the Bush years—who will speak for us?

I think we should expect our jurists to advocate for us. Judge Sotomayor showed that she at least cares about how our government acts with respect to our rights as citizens in a constitutional system. She recoiled from the suggestion that the Executive can “do whatever it wants” whenever it conjures up a shadowy “national security reason.” In essence, she showed that individuals matter more than the government. That is certainly an advance over Roberts and Alito, who could care less whether government swallows up individuals, or whether innocent people die at the hands of the State. In other words, Judge Sotomayor’s conduct at the Arar argument shows that she cares at least something for justice. In my view, that is an auspicious qualification for serving on the Supreme Court. And among at least four of its current members, it is a qualification sorely lacking.

Having said all this, I am glad I am not a judge. I like thinking for myself, not attempting to shoehorn my beliefs into precedent and prior judgment. Judicial work lends itself to obedience and cowardice far more than it does to daring. After all, judges work with others’ words, not their own. It is hard to be creative when someone else tells you how to paint. I echo Nietzsche on this score. Judicial work is like “dancing in chains.” Menschliches, allzu Menschliches Teil II, Der Wanderer und Sein Schatten Aph. 140 (“For what we call ‘Invention’ [in art] (metric rhyming, for example) is always just another chain that we lay upon ourselves”). Judges constantly imprison themselves in others’ logic and arguments. It is what they do. Yet when some passion escapes the chains, we should embrace it with full hearts.