I’m feeling deflated this morning. For many decades, the legal academy (and to some degree, the rest of the universe) has been debating the degree to which law is a scientific abstraction—a computer you crank up that spits out the right answer—and the degree to which it is malleable, subjective, a piece of clay that judges necessarily shape. At times, legal realism, as the second position is called, has gone too far. But mostly it’s a hugely welcome breath of fresh air, a way of articulating what everyone intuitively understands: Judges are not robots! They are not, in fact, umpires who just call balls and strikes, to give in to John Roberts’ now-pervasive sports metaphor, because sometimes they have to determine the size and placement and other parameters of the strike zone.
But now we have Sonia Sotomayor going along with, and indeed promoting, a view of the law as all about input dictating output. As she keeps putting it, in this or some other variation: “I’m a judge who believes the facts drive the law. By drive the law, I mean, determines how the law will apply in that individual case.” Sometimes, it is true that the facts of a case matter for interpreting a statute or a prior court ruling. But often, there is play in the joints, room for disagreement, reason that smart and, yes, even wise judges reach different conclusions. Sotomayor’s formulation ignores all of that reality. It frames cases as marching inexorably to one right answer. It’s the Dragnet version of judging: “Just the facts and the law, ma’am.”
Yes, I know: Sotomayor is repeating this mantra to distance herself from all her past statements about how life experience and background do, in fact, matter to the work of judging. Those statements are complicated and subtle. They might lead her down tricky paths today. And so into the attic of the past they go. Sen. Jeff Sessions rightly points out to Sotomayor, “Your philosophy is much more likely to reach full flower if you sit on the high court than on the lower court, where you are subject to review.” Sotomayor is giving us her version of Roberts’ simplistic, misleading umpire metaphor, and it is a zone of meaninglessness and safety to which she can retreat whenever a question could take her anywhere interesting. I guess this is what it takes to become a Supreme Court justice. But no wonder my colleagues are sending depressed notes about how Obama might as well nominate a computer.