From her perch at Slate, Dahlia Lithwick continues to set new standards for missing the point. In her column yesterday on Caperton v. Massey Coal (which I discussed here), Lithwick opines that all the justices who wrote in that case–Kennedy for the majority, Roberts and Scalia in dissent–were evincing the very same concerns about overcoming judicial bias as those Sonia Sotomayor expressed in her notorious speech “A Latina Judge’s Voice.” According to Lithwick, “we should recognize that [Sotomayor], like her soon-to-be-colleagues at the Supreme Court, understands that talking about bias aloud is ultimately better than whispering about it from the shadows.”
Let’s say that Lithwick herself has an . . . interesting way with texts. For while it is true, as she says, that Kennedy and Roberts were both concerned with the “appearance of judicial bias and judicial integrity,” and each was convinced that his way of approaching the problem would lead to the best results on that score, there was a whole ‘nother dimension of Caperton that doesn’t get on Lithwick’s radar screen at all. When Roberts identifies all the failures of Kennedy’s attempt to “provide clear, workable guidance for future cases,” he also identifies the cause of the failure. Responding to Kennedy’s repeated claim that Caperton was “extreme” or “exceptional,” the chief justice writes:
Extreme cases often test the bounds of established legal principles. There is a cost to yielding to the desire to correct the extreme case, rather than adhering to the legal principle. That cost has been demonstrated so often that it is captured in a legal aphorism: “Hard cases make bad law.”
The key distinction here–one that has escaped Justice Kennedy for his entire career–is between “yielding to desire” and “adhering to legal principle.” Caperton spells trouble in all the practical ways Roberts describes because Kennedy and the four liberals on the Court couldn’t check a fervent belief that they knew what “fairness” demands, even if they were completely unable to state a principle that would adequately explain what they were doing. If you can’t justify today’s decision except by saying it feels right, it’s no surprise that you haven’t provided any guidance for tomorrow’s cases.
Lithwick also has a curiously anodyne understanding of Sotomayor’s 2001 speech. She writes:
Sotomayor put it this way in 2001, quoting Judge Miriam Cederbaum [sic]: “[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cederbaum’s [sic] aspiration, I wonder whether achieving that goal is possible in all or even in most cases. . . . I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.”
Actually Sotomayor does not quote Judge Cedarbaum here but only paraphrases her. More importantly, Lithwick has deleted the choicest bits of Sotomayor’s speech, including an omission marked by her ellipses above. Here’s a fuller rendition:
While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address. I accept the thesis of a law school classmate, Professor Steven [sic] Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. . . .
The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. . . .
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow [sic] has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. . . .
My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. . . .
I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires [sic]. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering.
Pardon the lengthy quotation, but I did not want to be accused of (in Lithwick’s words) “reduc[ing] Sotomayor’s 18-year judicial career to a sound bite.” The striking thing about Sotomayor’s speech–and it contained arguments she employed on repeated occasions–is its precious combination of candor or honesty on the one hand, and intellectual confusion on the other. Neutral judging or “impartiality,” freed from the prison of one’s sex, ethnicity, or background, is in one breath praised as an “aspiration,” and in the next condemned for being “just that”–as though “aspirations” were not admirable after all but only the unreachably idealistic aims of fools. She “aspire[s] to be greater than the sum total of [her] experiences” but on the other hand she “accept[s her] limitations”–so much so that she devotes herself to assessing when acting on her “prejudices” is “appropriate.” She recognizes the danger in a “relative morality” but embraces it nonetheless.
The justices in the Caperton decision were all worried about judicial bias. Sonia Sotomayor is so unsure about the virtues and vices of judicial bias, she thinks it might actually be praiseworthy. Dahlia Lithwick says Judge Sotomayor’s point is to recognize that “being neutral is hard, perhaps ultimately impossible work and that the best judges are vigilant about trying to stay that way.” That’s an almost perfectly Sotomayorian sentence, because the antecedent to the phrase “stay that way” is impossible to determine. Stay what way? Stay focused on trying to be neutral? Or stay convinced that it is “ultimately impossible”?
In Sotomayor’s case, the evidence of the 2001 “wise Latina” speech is that she threw in the towel long ago on neutrality. Like a disillusioned Don Quixote, she seems to have concluded that judicial impartiality is an impossible dream not worth dreaming any more. As for Dahlia Lithwick, she still has illusions aplenty.