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But here's the thing: In order to be dishonest, Sotomayor has to know better. What's astonishing about the conservative justices on the court is that they genuinely believe that judging is no more than "applying the law to the facts". Seidman should be less frustrated with Sotomayor--whom he assumes knows the truth--then he should be withhis ideological cohorts the conservative jurists the bench, who clearly believe their own hype. If the former makes Sotomayor unqualified, where does that place jurists like Justice Roberts, who lack the self-awareness to even recognize they're being dishonest?
UPDATE: My mistake, Seidman is a liberal, not a conservative. I'm a little frazzled with following the hearings and blogging. I also want to add this comment from Campos:
Via Paul Campos, conservative law professor Louis Seidman accuses Sonia Sotomayor of dishonesty:
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.Seidman is accusing Sotomayor of dishonesty, and I think he's right: Sotomayor has been saying what she needs to say, backtracking on her previous insights, in order to get confirmed.
But here's the thing: In order to be dishonest, Sotomayor has to know better. What's astonishing about the conservative justices on the court is that they genuinely believe that judging is no more than "applying the law to the facts". Seidman should be less frustrated with Sotomayor--whom he assumes knows the truth--then he should be with
UPDATE: My mistake, Seidman is a liberal, not a conservative. I'm a little frazzled with following the hearings and blogging. I also want to add this comment from Campos:
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.
I think there are very few people who wake up every day and tell themselves they're being dishonest. But that doesn't mean judges should avoid questioning their personal biases and how they might affect cases -- that's what Sotomayor was arguing, and it's something she's had to walk back to a degree because conservatives are certain that there's only one way to interpret the law. It's also easy to see why this is an attractive idea -- it's easy to see how accepting Sotomayor's view could not only erode a judge's faith in their own decisions, but society's faith in judges.
-- A. Serwer
