Sotomayor the Realist?

President Barack Obama’s nomination of United States Circuit Judge Sonia Sotomayor to succeed retiring Supreme Court justice David Souter has roused some controversy. Critics have latched onto her comments about the advantages she believes that her ethnic background and sex give her over white male judges in performing the judicial function. Less commonly noted, however, has been the evidence her record provides concerning exactly what she thinks the judicial role is.

Sotomayor is a devotee of Legal Realism. That early-twentieth-century school of judicial thought amounts to this: Judges bound by law? Get real! In a 1996 speech at Boston’s Suffolk University Law School, Sotomayor embraced the main tenets of Legal Realism: that law is perforce indeterminate, and that lawyers’ role must be to shepherd the legal system to more and more progressive pastures. She encouraged her audience to teach non-lawyers that there was no avoiding the indeterminacy of the law, and so that indeterminacy ought to be taken as a perpetual invitation for judges to better society.

In short, Sotomayor subscribes to the idea that judges’ role is inescapably legislative. In fact, she stresses that some of society’s great advances came through judicial legislation.

Laurence Tribe, Harvard Law School’s grey eminence of judicial imperialism, called Barack Obama the best student he had ever had. The skeptical were forewarned, then, that Obama would tend to nominate people for judicial posts who intended to use their positions as legislative, rather than solely judicial, offices. Obama himself gave additional support to this fear when he said that besides legal reasoning in 95% of cases, judges must be prepared to be guided by “empathy” in the 5% in which legal reasoning alone was not enough.

Not enough for what? Alas, not enough to reach the “right” conclusion. Obama infamously said that what he meant by “empathy” was willingness to rule “correctly” in cases involving affirmative action, abortion, and congressional claims to virtually unlimited legislative power under the Commerce Clause where “the constitutional text will not be directly on point” (that is, where the Constitution does not lead to the outcome Obama desires). Obama-like, Sotomayor’s Legal Realism stands for the notion that the facts and the judge’s personality are the sole determinants of a case’s outcome. Perhaps they are right, perhaps there really is no way to prevent judges — or anyone else in power — from finding ways to do what they want. Perhaps it is a forlorn hope to expect judges to treat their oath to uphold the Constitution as any more than a formality.

That certainly is the lesson of Laurence Tribe’s career. It seems to be what Judge Sotomayor has in mind when she says that the experience of a wise Latina will likely lead to better decision-making than that of a white man, and when she laments the demographic makeup of the federal judiciary: if law is legislative, and if experience determines results, then each minority in the population (butchers, bakers, candlestick makers) ought to seek to maximize its representation in the judiciary.

If she thought that judging was judicial, Sotomayor would not care what the ethnic background, class background, or sex of a particular judge was.

Judge Sotomayor, alas, shares her patron’s disdain for the very idea of law. And make no mistake about it, Legal Realism is a fancy name for denial of the very idea that the people through their elected representatives can tell government officials what to do and expect them to do it. John Adams said that the Americans wanted to establish a government of laws, not of men; according to Legal Realists, the men are the laws.

This idea is not new. King James I, notorious English dictator of the early 1600s, famously said “Rex est lex loquens.” (“The king is the law speaking.”) In the end, it took the English a revolution in 1688 to rid themselves of kings who thus put themselves above the law. In America, Richard Nixon was driven out of office for acting on his stated idea that whatever the president did was legal. One might have thought that the idea of an official’s being above the law was an un-republican, even un-American, idea. He would not have been paying attention to the views of such as Obama, Tribe, and Sotomayor.

The last avowed Legal Realist on the Court, William O. Douglas, left in 1975. Douglas famously slighted the appellate judge’s chief task of providing clear reasoning to guide lower courts and lawyers, opting instead for fanciful explanations of individual outcomes that suited him at a given moment. Perhaps the most infamous instance of such behavior by Douglas, a noted environmentalist, came in an opinion in which he argued that trees should have standing to sue for their own preservation.

One wonders what a wise Latina judge would make of that.

Less candid than Sotomayor or Douglas, and in the fashion of his mentor Tribe, Obama does not let on what he is about. What formerly was called “judicial activism” now is reclad as “empathy,” just as “spending” has become “investment,” “welfare” has become “human services,” and “war” has become “defense.” Clad in the language of Oprah, ethnic boasting, and sex pride, perhaps Sotomayor’s program of end-running the Constitution will likely win her a seat on the Supreme Court.

That would be a shame.

For decades, conservatives of various stripes have argued that since the Warren Court days at the least, and in large measure since 1937, the Supreme Court has behaved as an American super-legislature. That it has been lawless. A permanent constitutional convention. Seldom has so naked an attempt to perpetuate that role as the nomination of Sonia Sotomayor presented itself to senators and to the public.

Some senators have been prone to take the easy way out when it came to judicial nominations, arguing — as John McCain has done — that since “elections have consequences,” they should rubber-stamp most such presidential decisions. But the Senate’s role is more serious than that. Any senator who votes to confirm a Legal Realist is endorsing the idea that the Constitution, at root, is whatever the judges want it to be. And that is no constitution at all.