Judges Are Like . . .

This week I have been trying to catch up on some tasks that have been on my list since early in the semester.  One has been to post some of my recent papers on SSRN.  To this end, I have just put up Color Commentators of the Bench, which may be of interest to certain Situationist readers.  The abstract appears below:

Featuring prominently in the last four sets of Supreme Court confirmation hearings, the judge-as-umpire analogy has become the dominant frame for understanding the role of the Justice and may also now act as a significant constraint on judicial behavior. Strong criticisms from legal academics and journalists attacking the realism of the analogy have had little destabilizing effect. This Essay argues that the best hope for shifting the public conception of the work of a Justice is to offer a counter analogy that draws from an equally intuitive and familiar context, while also capturing the core essence of Supreme Court adjudication—the particular process of creative interpretation and explanation. The metaphor of the Justice as color commentator in the press box not only meets these criteria, but also makes explicit that judges are not robotic, objective arbiters. Moreover, in exposing the myth of judicial rationality and neutrality bolstered by the umpire analogy, the commentator alternative provides the possibility of helping Justices to better control for their biases and reducing damaging episodes of cognitive illiberalism. As further evidence of the appropriateness and robustness of the commentator analogy, the Essay concludes by demonstrating how sports commentating can be critiqued employing the precise implements developed by legal scholars to analyze judicial decision making.

To download a copy of the entire paper, click here.

For a sample of related Situationist posts, see “I’m Objective, You’re Biased,”

Elena Kagan’s Situation

In today’s New York Times, Sheryl Gay Stolberg, Katharine Q. Seelye and Lisa W. Foderaro  have an illuminating biography of Supreme Court Nominee (and Situationist friend and supporter) Elena Kagan. Here are the opening paragraphs of that story.

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She was a creature of Manhattan’s liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice, underneath.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.

She was the opera-loving, poker-playing, glass-ceiling-shattering first woman to be dean of Harvard Law School, where she reached out to conservatives (she once held a dinner to honor Supreme Court Justice Antonin Scalia) and healed bitter rifts on the faculty with gestures as simple as offering professors free lunch, just to get them talking.

Elena Kagan has been all of these things, charting a careful and, some might say, calculated path — never revealing too much of herself, never going too far out on a political limb — that has led her to the spot she occupies today: the first female solicitor general of the United States, who won confirmation with the support of some important Republicans, and now, at 50, President Obama’s nominee for the United States Supreme Court.

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The entire story is here.   Congratulations to Elena.

To read a sample of related Situationist posts, see “Martha Minow Named Dean of Harvard Law School,” “The Situation of Harvard Law Students” “Hanson’s Chair Lecture on Situationism,” “The News Situation of Judge Sotomayor’s Nomination,” and “The Situation of Judicial Activism.”

Firefighters and the Situation of “Merit”

The following excerpted op-ed, “Trial by Firefighters,” co-written by Harvard Law Professor Lani Guinier and Columbia Law Professor Susan Sturm, was published in the July 11, 2009, edition of The New York Times. They are also the co-authors of “Who’s Qualified: A New Democracy Forum on the Future of Affirmative Action” (Beacon Press, 2001).

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STANDING on the steps of the federal courthouse in New Haven, the lawyer Karen Torre reveled in her clients’ victory in a recent case before the Supreme Court. She anointed her clients — the white firefighters who scored well on a promotion test — “a symbol” for millions of Americans who are “tired of seeing individual achievement and merit take a back seat to race and ethnicity.”

But the Supreme Court’s 5-to-4 decision last month — that New Haven should not have scrapped the test — perpetuates profound misconceptions about the capacity of paper-and-pencil tests to gauge a person’s potential on the job. Exams like the one the New Haven firefighters took are neither designed nor administered to identify the employees most qualified for promotion. And Ms. Torre’s identity-politics sloganeering diverts attention from what we need most: a clear-eyed reassessment of our blind faith in entrenched testing regimes.

New Haven used a multiple-choice test to measure its firefighters’ retention of information from national firefighting textbooks and study guides. Civil service tests like these do not identify people who are best suited for leadership positions. The most important skills of any fire department lieutenant or captain are steady command presence, sound judgment and the ability to make life-or-death decisions under pressure. In a city that is nearly 60 percent black and Latino, the ability to promote cross-racial harmony under stress is also crucial.

These skills are not well measured by tests that reward memorization and ask irrelevant questions like whether it is best to approach a particular emergency from uptown or downtown even when the city isn’t oriented that way. The Civil Service Board in New Haven declined to certify the test not only because of concerns about difference in scores between black and white firefighters but also because it failed to assess qualities essential for firefighting.

As Justice Ruth Bader Ginsburg noted in her dissent, tests drawn from national textbooks often do not match a city’s local firefighting needs. Most American fire departments have abandoned such tests or limited the multiple-choice format to 30 percent or less of an applicant’s score. In New Haven, the test still accounted for 60 percent of the score. Compounding the problem, insignificant numerical score differences were used to rank the firefighter candidates.

What should a city do when its promotion test puts a majority of its population at a disadvantage and is also unlikely to predict essential job performance? People who excel on such a test may expect to be promoted. But testing should not be about allocating prizes to winners. No one has a proprietary right to a particular open job, even if that person worked hard preparing for a test.

When a city replaces a bad test, as New Haven wanted to do, the employees who did well on it do not lose their right to compete for promotions; they merely need to compete according to procedures that actually identify people who advance the mission of saving lives and property — and enhance the department’s reputation in the community for treating all citizens with respect.

Yet many Americans believe so strongly that tests are fair that they never question the outcomes, especially when those outcomes conform to stereotypes about people of color. Such preconceptions lead to the conclusion that blacks or Latinos who don’t do well must lack individual initiative or ability.

As the plaintiff in the New Haven case, Frank Ricci, declared, “If you work hard, you can succeed in America.” His lawyer went further: White officials who voted for a better assessment system must have been lowering “the professional standard of competence,” she said, “for the sake of identity politics.” Yet, in New Haven, no one was promoted instead of the white firefighters.

In fact, many fire departments with a history of discrimination, like New Haven’s, still stack the deck in favor of candidates who have relationships to people already in the fire department. Those without $500 for the study materials or a relative or friend from whom they might borrow the books were put at a disadvantage.

Moreover, it was the firefighters union — which sided with the white firefighters in the Supreme Court — that negotiated the contractual mandate giving disproportionate weight to the multiple-choice test. Those negotiations occurred two decades ago when the leadership of the department was virtually all white. Taking this into account, after five days of public hearings, Malcolm Webber, one of the white members of the New Haven Civil Service Board, said: “I’ve heard enough testimony here to give me great doubts about the test itself and the testing — some of the procedures. And I believe we can do better.”

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To read the entire op-ed, click here. For a collection of previous Situationist posts discussing how situation influences standardized test scores, click here.  For those discussing Supreme Court nominee, Judge Sotomayor, click here.

The News Situation of Judge Sotomayor’s Nomination

As the the media quickly responds to news of Judge Sotomayor’s nomination, we thought it might be interesting to include some excerpts from a few different sources.

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From Fox News:

President Obama nominated federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court Tuesday, citing her “inspiring life story” and “distinguished career” in his decision.

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The president, in his announcement, said he was looking for a justice with a “common touch and a sense of compassion” as well as experience and depth of knowledge. He said Sotomayor, who grew up in a Bronx housing project and has an extensive judicial background, would come to the Supreme Court bench with more varied experience than anyone currently on the court when they were appointed.

Sotomayor, who said she was “deeply moved” by the president’s decision, called herself an “ordinary person who has been blessed with extraordinary opportunities and experiences.”

Obama called Sotomayor an “inspiring woman who I believe will be a great justice.”

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Sotomayor’s selection indicates that Obama is interested in diversifying the court. If she is confirmed, Sotomayor will become the third woman to be a Supreme Court justice, and she will join Ruth Bader Ginsburg in the current court.

Obama had said he was looking for a nominee who demonstrates empathy and “intellectual fire power,” as well as possesses the “common touch.” The president on Tuesday described Sotomayor, a judge for the 2nd Circuit Court of Appeals, as someone who fits these criteria.

She is the daughter of Puerto Rican immigrants, and she was raised in a Bronx housing project. She has dealt with diabetes since age 8 and lost her father at age 9, growing up under the care of her mother. Sotomayor supposedly became interested in law after watching the TV show “Perry Mason.”

She graduated from Princeton University and earned her law degree from Yale University. Sotomayor was appointed a federal district court judge in 1992 by President George H.W. Bush and then elevated to the 2nd Circuit Court of Appeals by President Bill Clinton. At that time, Republicans held up her confirmation, but she eventually passed the Senate 68-28.

Tuesday’s selection drew swift praise from liberals like the Rev. Al Sharpton, who called the choice “prudent” and “groundbreaking.” New York Sens. Chuck Schumer and Kirsten Gillibrand, Democrats from Sotomayor’s home state, also praised the pick and released a letter they wrote to Obama earlier in the month recommending her as an “excellent selection.”

Souter generally sided with the liberal wing of the high court, so Obama’s selection would not tilt the ideological balance of the body. But Sotomayor was considered one of the most liberal of Obama’s potential nominees, and she could set off a fight from the right during confirmation — even though Republicans are far outnumbered on Capitol Hill.

“This is not a bipartisan, consensus pick,” one senior GOP Senate leadership aide told FOX News.

As an appellate judge, she sided with the city of New Haven, Conn., in a discrimination case brought by white firefighters after the city threw out results of a promotion exam because two few minorities scored high enough. Ironically, that case is now before the Supreme Court.

A YouTube video of Sotomayor speaking at Duke University about what some interpreted as judicial activism also stirred controversy.

In the video, she said: “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

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“Senate Republicans will treat Judge Sotomayor fairly,” Senate Republican Leader Mitch McConnell said in a written statement. “But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

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From the New York Times:

President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in Bronx public housing projects to become the nation’s first Hispanic justice.

Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.”

The president said he had made his decision after “deep reflection and careful deliberation,” and he made it clear that the judge’s inspiring personal story was crucial in his decision. Mr. Obama praised his choice as someone possessing “a rigorous intellect, a mastery of the law.”

But those essential qualities are not enough, the president said. Quoting Justice Oliver Wendell Holmes, Mr. Obama said, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live,” the president said.

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“My heart today is bursting with gratitude for all that you have done for me,” she said to her family, describing her selection as “the most humbling honor of my life.”

“I stand on the shoulders of countless people,” she said. But towering above all, she said, is her mother, who raised her alone after her father died. “I am all I am because of her,” Judge Sotomayor said, “and I am only half the woman she is.”

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Initial reaction to the selection reflected party divisions and signaled that Judge Sotomayor’s confirmation hearing before the Senate Judiciary Committee would be spirited.

“Her record is exemplary,” said Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee. “Judge Sotomayor’s nomination is an historic one, and when confirmed she will become the first Hispanic justice, and just the third woman to sit on the nation’s highest court. Having a Supreme Court that better reflects the diversity of America helps ensure that we keep faith with the words engraved in Vermont marble over the entrance of the Supreme Court: ‘Equal justice under law.’”

Another Democrat on the panel, Senator Charles E. Schumer of New York, was also enthusiastic. “Her outstanding legal mind, and her compelling life experience, is just the combination this court needs in its next justice,” Mr. Schumer said.

But early Republican reaction was decidedly lukewarm. “Republicans will reserve judgment on Sonia Sotomayor until there has been a thorough and thoughtful examination of her legal views,” said Michael Steele, chairman of the Republican National Committee.

And Senator John Cornyn of Texas, a member of the Senate Judiciary Committee, said, “Because Judge Sotomayor would serve for life if she is confirmed, it is essential that the Senate conducts this process thoroughly, and the President has assured me that we will have ample time to give Ms. Sotomayor’s record a full and fair review.”

Mr. Cornyn said the nominee “must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings, and preferences.”

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From MSNBC (video – roughly 10 minutes):

Vodpod videos no longer available.

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From Mike Huckabee’s Website:

The appointment of Sonia Sotomayor for the Supreme Court is the clearest  indication yet that President Obama’s campaign promises to be a centrist and think in a bi-partisan way were mere rhetoric. Sotomayor comes from the far left and will likely leave us with something akin to the “Extreme Court” that could mark a major shift. The notion that appellate court decisions are to be interpreted by the “feelings” of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.

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For a recent, related Situationist post, see Adam Benforado and Jon Hanson’s “The Situation of Judicial Activism,” which contains link to still more related posts.

The Situation of the Supreme Court

Earlier this year, Jeffrey Rosen wrote an interesting piece in the New York Times Magazine on how the increase in business-related cases heard before the U.S. Supreme Court appears to correspond to ideological changes among members of the Court and in the country. We excerpt the piece below.

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The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.

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Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.

[There has been a recent] ideological sea change on the Supreme Court. A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars.

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This term, the Supreme Court has continued to cut back on consumer suits. In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies. The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed. A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud. As a result, the shareholder suit against the banks may be dead.

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For the rest of the piece, click here. For other Situationist posts on the Supreme Court, click here.

The Legal Situation of Race Equality – Abstract

Ivan Bodensteiner has posted his paper, “The Supreme Court as the Major Barrier to Racial Equality” on SSRN. Here’s the abstract.

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This Article suggests that the U.S. Supreme Court, through its decisions in cases alleging race discrimination, stands as a major barrier to racial equality in the United States. There are several aspects of its decisions that lead to this result. Between 1868 and 1954, the Equal Protection Clause of the Fourteenth Amendment, while it had been interpreted to strike down a few blatant forms of de jure discrimination, allowed government to separate the races based on the separate but equal fiction. Beginning in 1954, Brown and a series of subsequent decisions attacked this fiction and for a period of nearly twenty years the Court was intent on eliminating the vestiges of segregation in the schools, approving broad remedial orders. This changed drastically beginning in 1974 when the Court began limiting the available remedies and relieving school systems of the burdens imposed by court orders. Around the same time, the Court decided that equal protection plaintiffs needed to show a discriminatory governmental purpose in order to trigger meaningful constitutional protection. This meant that facially neutral laws and practices with discriminatory effects were largely constitutional.

Beginning with Bakke in 1978, the Court made it difficult, and eventually nearly impossible, for government to take affirmative steps designed to promote equality. A majority of the Court determined that invidious and benign racial classifications should be treated the same under the Equal Protection Clause, with both subjected to strict scrutiny. This completed the Court’s interpretation of the Fourteenth Amendment in a manner that makes it a real barrier to racial equality: government is free to engage in invidious discrimination as long as it masks the real purpose, and affirmative steps designed by government to promote equality will be struck down as a violation of equal protection. Ironically, the constitutional amendment designed to promote freedom and equality for the newly-freed slaves now stands in the way of true freedom and equality.