Wednesday, July 15, 2009

A Different Kind of Diversity

As Senator Whitehouse of Rhode Island astutely observed, if confirmed, Judge Sotomayor will not only be the first Latina on the Supreme Court, but will also be the sole member of that body who has served as a district court judge. Justice O’Connor, the first woman to be appointed to the Court, similarly brought a somewhat different legal background to her task than her colleagues. She had previously been both a state legislator and a state court judge, and commentators have often suggested that her experience in those state capacities helped shape her views on federalism and her respect for state sovereignty. What, then, might be the implications of a Supreme Court Justice with district court experience?

One answer might serve to explain the conciseness of the Ricci v. DeStefano summary order that has been the subject of so much controversy, and about which Ricci himself is slated to testify. In that summary order, the three-judge panel affirmed the rationale of what it called the “thorough, thoughtful, and well-reasoned opinion of the [district] court below.” During her confirmation hearing, Judge Sotomayor has emphasized the length and comprehensiveness of that district court opinion, and she has expressed respect for the efforts of the trial court. Judge Sotomayor’s experience on the district court may have contributed to a view that, although the determinations of law below are not entitled to the same degree of deference as those of fact, it was not necessary to supplement or supersede the otherwise sufficient reasoning of the district court judge in the Ricci case.

Just as those in favor of a rigorous conception of federalism place significance on local determinations, and members of the founding generation feared fact-finding in the Supreme Court because it might contravene the independence of regional juries, we might see considerable value in granting more weight to the decisions of district courts. It is, after all, the district court judge who assesses all the evidence in person, and who is best positioned to evaluate the entirety of the circumstances of the case. Confirming someone who can appreciate the vantage point of the district court judge would certainly add another welcome element of diversity to the Supreme Court.

Foreign Authorities (Ancient and Modern)

When Senator Coburn today asserted, after asking Judge Sotomayor whether states have the right to determine the definition of death, that he did not actually expect her to answer the question, but simply to pay attention to it in her deliberations, he seemed to be conceding the likelihood of her confirmation. If this is the case, his interventions can be read as having a purpose apart from determining whether or not Judge Sotomayor should sit on the Supreme Court. Instead, Senator Coburn rehearsed for the American public a set of hot-button issues raised by the Supreme Court’s jurisprudence, including whether technological advances should affect the understanding of viability in the abortion context, whether there is a constitutional right to self-defense that underpins an individual right to bear arms, and whether American courts should cite foreign law.

The many rounds of debates about the citation of foreign law that have already occurred may render legal scholars somewhat fatigued with the topic, but it remains a point of public controversy. In her remarks, Judge Sotomayor lucidly and succinctly illuminated how much of the discussion consists in people talking past each other. As she emphasized, there is a public misunderstanding of what “using” foreign law means to most judges; rather than relying on foreign legal authority as a precedent or to influence the outcome of a case interpreting the U.S. Constitution or a statute, judges simply “use” foreign legal principles or decisions as helpful aids in thinking through domestic legal problems.

Had she been so inclined, Judge Sotomayor could perhaps have cited Senator Coburn’s own opening remarks to illuminate the distinction. Towards the conclusion of his statement, after expressing concern about the justices’ invocation of foreign authority, Senator Coburn explained that Aristotle defined law as “reason free from passion,” and endorsed that view. Are we to deduce from this remark that Aristotle was an American, or is it more plausible to think that our legal system shares certain general principles with its foreign counterparts, whether ancient or modern?