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Remarks at the American Constitution Society for Law & Policy National Convention

As prepared for delivery

Thank you very much, Travis [Rodgers], for that warm introduction, and thank you to the American Constitution Society for inviting me to speak here today on a topic that is crucial to our democracy and the rule of law: "Keeping Faith with the Constitution." I applaud your commitment to the spirit of our Constitution and its promises to all Americans: to establish justice, and secure the blessings of liberty.

As members of the Senate Judiciary Committee, my colleagues and I have the opportunity to wrestle with some of the most important constitutional issues facing our country. The nomination of a new Supreme Court Justice - itself an historic event - and the hearings that follow inevitably raise such questions. As you would expect, the nomination of Judge Sotomayor to replace Justice Souter has raised questions about the role of the Supreme Court, and judges generally, in "keeping faith with the Constitution."

Inevitably, critics have unleashed an avalanche of innuendo, and even falsehoods, meant to weaken the case for Judge Sotomayor's confirmation. Some have walked back from the worst of what's been said - the charge that she is a racist, for example - but troubling undercurrents remain. These suggest that Judge Sotomayor's life experience is somehow unhelpful to the judgment she would bring to the Supreme Court, or that nominees are activists because they have, to quote President Obama, "empathy." This merits a response, because it is harsh, narrow-minded, and ahistoric to contend that a rich life experience and natural empathy are at odds with the wise exercise of judicial discretion that is the longstanding tradition underlying the American system of law.

First, as we all know, discretion is at the heart of the judicial role, at all levels of the court system. I hardly need to remind a room full of lawyers that the common law traditions of the Anglo-American system stand on the exercise of judicial discretion. Our common law is an accretion over generations of individual exercises of judgment and discretion, focused and refined through due deference to precedent. It is the architecture of judge-made law we live with to this day. As a result of this heritage, our legal system bears the imprint of the experience and wisdom of generations of judges. As Justice Holmes famously explained:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

This does not mean that judges are without bounds. But there exists a broad and lively discretion that falls far short of "judicial activism." Benjamin Cardozo, another luminary of American legal history, put it this way:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains.

Within this field of discretion, judges do not, cannot, and should not close their minds to their experience of the world, nor to what that experience teaches them about the effects of their decisions on the world. This aspect of our rule of law is an asset for Americans. As Justice John Paul Stevens has explained:

The work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment - a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision. The fact that such concerns play a role in the decisional process does not undermine the legitimacy of the process that, for the most part, has served the nation well for two centuries.

Our legal system has long been based on the wise exercise of the discretion entrusted to judges, and this wise and informed discretion has not gone the way of judges' wigs. Contemporary judges at every level of our court system routinely make discretionary judgments.

District Court judges exercise discretion that often is crucial to the outcome of cases:

  • They make case management and procedural decisions, on scheduling, discovery, admissibility of evidence, and class certification - all reviewed under an abuse of discretion standard.
  • At the beginning of a criminal case, District Courts make crucial decisions in Batson challenges during the voir dire process, and at the end, they have great discretion in the sentences imposed on convicted criminals.
  • District Courts make often-dispositive credibility determinations, most obviously in bench trials, but also in suppression hearings, upon which many a criminal conviction stands or falls.

United States Courts of Appeal exercise significant discretion. They guide District Court judges' discretion by clarifying the law, trying to fill statutory gaps or inconsistencies with logic, precedent, and wise appreciation of the human impact of their ruling. Practitioners know that, except in the most obvious cases, a rule of statutory construction can be found to support nearly every outcome. These courts make law interstitially, but no one should doubt they make law.

The Supreme Court of course has boundless discretion, limited only by the tolerance for novelty of a majority of the justices. First, it decides which cases it will hear. This simple decision is crucial to the direction in which American law develops, and, of course, it is absolute. And the justices have the ultimate authority to overrule their own precedents or, for example, to discern a new constitutional right to bear arms never noticed before in 230 years of history and precedent.

No matter whether one agrees with the results courts reach, we all should recognize the wide discretion properly left to judges in interpreting the law and applying it to the facts of a case. Nowhere is this more important than in the interpretation of the Constitution, since, as John Marshall explained in the famous national bank case of 1819, McCulloch v. Maryland, the Constitution is not a precise legal code that provides clear and ready answers to the legal questions of the day.

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.

Constitutional law often turns on the judgment of courts, as the relevant doctrines require the balancing of competing crucial interests to deduce the important objects. Separation of powers cases, for example, require courts to evaluate the competing interests and prerogatives of the branches of government. Due Process cases require a weighing of governmental and private interests, since Due Process, as the Supreme Court explained in Mathews v. Eldridge, "is flexible and calls for such procedural protections as the particular situation demands." As Justice Holmes said:

All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.

Central to the American legal tradition is the need for judges, and particularly Supreme Court Justices, with the good judgment to exercise discretion wisely. Right-wing critics of the administration have latched on to President Obama's description of that good judgment as "empathy." Even the ranking member of the Judiciary Committee, Senator Sessions, recently suggested that President Obama's use of the word "empathy" indicates a belief "that a judge should use his or her personal feelings about a particular group or issue to decide a case."

I respectfully suggest that's a bit of a stretch. The President looked for in his nominee, and found in Judge Sotomayor, the life experience necessary to understand how a court's legal decisions affect the everyday lives of regular people. Do critics of Judge Sotomayor's nomination really object to this principle? Should we not prefer a nominee who has common sense, who can appreciate how American laws affect different citizens, and who can empathize with the various parties who come before the court, rich and poor, strong and weak? If reaching correct outcomes were as simple as plugging a few factors and elements into a computer, we wouldn't need nine Supreme Court Justices. Appellate judges sit in panels of three, or five, or seven, or nine, because we know that a broad range of perspectives and experience makes for better judgment. As Judge Sotomayor correctly explains, judges "must not deny the differences resulting from experience and heritage but [should] attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

Compare that rich and candid consideration of the interaction between experience and judicial judgment with the facile analogy that my Republican colleagues have grown fond of: that judges are mere "umpires" who call "balls and strikes." Of course, that analogy is mistaken.

First, lest we forget, Republican nominees have themselves recognized that a broad life experience makes for a better Justice. Less than four years ago, Samuel Alito, then a judge on the Third Circuit, explained that his personal background and experience enriched his judgment in legal cases. He said this:

[W]hen a case comes before me involving, let's say, someone who is an immigrant - and we get an awful lot of immigration cases and naturalization cases - I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.

Chief Justice Roberts himself, who raised the "umpire" metaphor at his confirmation hearing, embodies the weakness of the analogy. Writing in the New Yorker, Jeffrey Toobin recently described a pronounced ideological predisposition in Chief Justice Roberts.

In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

Maybe this is a pure coincidence, and maybe it is a further coincidence, to again quote Toobin, that this record "has served the interests, and reflected the values, of the contemporary Republican Party." But I will confess to you, I doubt it. I think that this record disproves the metaphor of the judge as neutral umpire.

Why does this matter? It matters because denying the vital role of judicial discretion and judgment builds a bias toward mechanistic judges who fail to understand how court decisions actually affect the lives of everyday Americans; mechanistic judging in turn leads to judicial bias in favor of the presiding power structure; and the false denial of discretion's historic role establishes as a baseline norm, against which variation is viewed as eccentric, a particularly and actually rather narrow world view. Is it really the case that white men who came to prominence through the Federalist Society have no predispositions? Should the judicial appointment and confirmation process anoint their views as the baseline or the norm?

Consider some of the recent decisions of the Supreme Court:

Congress had to step in after the infamous Ledbetter decision that mangled congressional intent, gutted important protections of Title VII, and reversed years of judicial practice. As Justice Ginsburg observed in her telling dissent, the decision ignored both the practical realities of the day-to-day workplace and the history and nature of discrimination on the basis of sex. As Justice Ginsburg noted, as a result of the lack of understanding and empathy with those in the workplace, the Court "ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose."

The Louisville and Seattle integration cases similarly ignored the realities of racial discrimination in our country. Chief Justice Roberts may have assumed the mantle of impartiality in proclaiming that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race," but as Justice Stevens explained, it was an impartiality that ignored our nation's very real history of racial discrimination. Let me quote from his dissent:

There is a cruel irony in The Chief Justice's reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.

The view that Jim Crow laws were designed to discriminate against white children, to forbid them going to poor black schools, is a peculiar world view indeed.

A final example: the Supreme Court recently permitted the first prohibition on abortion since Roe v. Wade that ignores the woman's health as a factor. Justice Ginsburg rightly rejected the majority's presumption that it speaks for and understands women's interests: "Though today's majority may regard women's feelings on the matter as ‘self-evident,'" she wrote, "this Court has repeatedly confirmed that ‘[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.'" Do we really believe that this decision was not affected by Justice Ginsburg being the lone female Justice? Is the majority's easy assertion of women's "self-evident" feelings really insulated from any bias or predisposition?

The "balls and strikes" theory ignores the fact that the courtroom is an integral part of our American system of separated powers, and ignores the fact that is an arena in which the status quo contests with upsurgent forces, often when the other institutions of government are arrayed against them. It is an arena of political combat.

Let us use this as one example of the way life experience may bear on the appreciation of a particular issue: trial by jury. Trial by jury is established in Article III, Section 2 of the Constitution, and by the Sixth and Seventh Amendments. A wise observer of our country, Alexis de Tocqueville, observed "two things in the jury: a judicial institution and a political institution." In his chapter headed "On What Tempers the Tyranny of the Majority," he said the following:

The jury is before everything a political institution; one ought to consider it as a mode of the sovereignty of the people.

He noted that

it places the real direction of society in the hands of the governed or in a portion of them, and not in those who govern.

The jury system, along with universal suffrage, he said, "are two equally powerful means of making the majority reign," concluding that "the jury . . . is the most energetic means of making the people reign."

De Tocqueville noted that:

All sovereigns who have wanted to draw the sources of their power from themselves, and to direct society instead of allowing it to be directed by itself, have destroyed the institution of the jury or have enervated it.

The right to trial by jury was preserved in the constitution for a reason; the founders were justifiably suspicious of executive governors and legislative assemblies, but had confidence in the judgment of a jury of our peers. As Roscoe Pound wrote: "Jury trial was especially insisted on because when judges were appointed and removed by the royal governors in order to secure judgments which the governors desired; the jury, even when chosen by a sheriff who was an appointee and tool of the governor, was the only assurance of a fair trial open to an accused or a litigant." A judge with no life experience as an outsider, a judge comforted by the status quo, a judge reliant on the organizations of power structure's approval, is less likely to appreciate this disruptive power. We witness now a concerted attack on access to the jury by America's corporate sovereignty, whether directly by limiting malpractice or class action, or indirectly by attacks on plaintiffs' lawyers and "runaway juries," so this is not a hypothetical concern. Judges' life experiences will make a real and proper difference in their appreciation of this basic right. To say that the jury trial right is a matter of balls and strikes is an offense to history and to fact.

* * * * *

In conclusion, American courts bring justice to the American people, in significant part because of the discretion we entrust to our judges and justices. Broad and diverse life experiences can make for better judgment and truer justice, and we should celebrate a nominee who would bring these qualities to the bench.

Indeed, is Judge Sotomayor's life experience as a wise Latina woman, or President Obama's concern for judicial empathy, really the issue? Or does that stated concern reveal more about the critics than about the judge and the President? Does it not perhaps reveal an impatience with any world view that has not been groomed in corporate boardrooms, scrubbed by the Federalist Society, cosseted by privilege and exclusion, and comforted by the status quo? Our world, I think, is bigger than that, and our Constitution must be sized to fit that larger world. If Sonia Sotomayor represents a part of that larger world, even if she takes some points of view outside their comfort zone, that may be the very best argument for her nomination. The world is big enough, the Constitution is broad enough, and the Court should be diverse enough, for her to find a place on it.

I look forward to learning more about Judge Sotomayor during her confirmation hearing. My consideration of her nomination will ultimately turn upon her record and the answers she gives at her hearing. My initial review indicates that she will be a very careful justice, respectful of precedent, attentive to the positions of all those who come before her, and dedicated, above all else, to the rule of law. But in this process let us dispense with the false assertion that conservative justices are mere umpires and that nominees who don't share their world view, their biases and predispositions, who may not rule for the prosecution, for the state, for the executive, and for the corporation in every major case, are activists. Let us not undermine the nomination of an experienced and expert judge because her life has prepared her to exercise the good judgment that is central to our legal system. Let us not allow the judicial appointment and confirmation process to exalt one narrow point of view to the exclusion, or at least deprecation, of all others. And let us remember again that the life of the law has been experience.

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