The confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative. The public tuned in expecting a discussion of the nominee’s qualifications and a debate on the role of the Supreme Court in our constitutional system. What they got, instead, was a battle of metaphors.
Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire. An umpire confines himself to calling balls and strikes without allowing his preference for one team or the other to influence the performance of his duties. The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.
While the umpire metaphor expresses a commendable aspiration, one can’t help but wonder whether this is an attainable goal.
Even on its own terms, the Umpire metaphor does not seem to accord with human behavior. Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games. There have been persistent calls for Major League Baseball to use machines that would call balls and strikes without error, much like the League adopted instant replay to correct mistaken calls by the officials. If umpires are not perfect, is it fair to demand perfection from judges.
In fact, it is a good thing that judges do not all act alike, as if they were machines, and that our system of justice provides room for individualized discretion. It is in our discretion that we express our humanity. Judge Jose Cabranes (the “good Hispanic” on the Second Circuit, according to the conservative critique of the Ricci firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging. He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:
“[W]e should start with the simple recognition that the Sentencing Guidelines are based on a fundamental misconception about the administration of justice: the belief that just outcomes can be defined by a comprehensive code applicable in all circumstances, a code that yields a quantitative measure of justice more easily generated by a computer than a human being. We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires. The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges. Instead, in the typical case, the judge is supposed to perform an automaton’s function by mechanistically applying stark formulae set by a distant administrator. The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves. As one federal judge has put it, the Guidelines ‘tend to deaden the sense that a judge must treat each defendant as a unique human being . . . . [I]t is quite possible that we judges will cease to aspire to the highest traditions of humanity and personal responsibility that characterize our office.” [p. 169]
The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging. The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public. Most significantly, when a federal judge exercises their constitutional power to “say what the law is,” the general public will be primed to respond with resentment towards a judge who failed to act in accord with their expectations — despite the fact that these expectations were unrealistic in the first place.
The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective. The Wise Latina is a judge who incorporates her life experiences into her rulings from the bench, and who views the law through the lens of her own prejudices and beliefs. The metaphor of the Wise Latina was created by Republican Senators in order to represent someone who possesses racial or gender grievances, who holds an ethno-centric world view, and who will choose winners and losers in the courtroom in order to redress past grievances and advance that view. It was put forth in order to provide a negative contrast to the Umpire metaphor.
The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor. Life experiences do influence how judges view facts and precedent. However, the Wise Latina metaphor tells us nothing about how a judge should use their life experiences to inform their judgment whilst avoiding the danger of individualized bias. Judge Sotomayor’s only sin was in admitting that as a federal judge she possesses a range of discretion that many people fear, and that in the case of life tenure judges this discretion is subject only to self-policing. During the confirmation hearings, Senators Sessions and Kyl tried to argue that the Wise Latina metaphor provided a basis for predicting that Judge Sotomayor would favor ethnic minorities and women in her rulings on the Supreme Court, but they never made the causal connection between their descriptive metaphor and her future propensities.
Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina. In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker. As Judge Sotomayor described the job, a Supreme Court Justice is like a craftsman (or craftswoman) who takes the raw materials on the workbench (the particular facts of the case and the relevant precedent) and carefully joins them together into an opinion that is solidly constructed as to both form and function. In so doing, the Cabinetmaker stays focused on the individual task at hand, and on serving the immediate needs of his customer, rather than on advancing some personal agenda to revolutionize home furniture design. The result is a piece of furniture that reflects the cabinetmaker’s influences, but that does not substitute the cabinetmaker’s own taste for the client’s desires.
There is much to admire in the Cabinetmaker metaphor. It demands that Supreme Court opinions adhere to an internal formal logic, and that they conform to the facts as found by the lower court and to prior precedent. This metaphor therefore provides a prescriptive guide to judging. It holds judges to an objective set of rules and it evaluates the judge’s performance on the basis of how closely they follow those rules. Personal bias cannot be eliminated, but personal bias is not likely to overcome the formal rules of logic or to force a syllogism to arrive at a particular result. Judges are more like craftsmen, akin to a cabinetmaker who is highly regarded for the fine construction of his furniture. Poor craftsmanship will be obvious to most objective observers (my students will no doubt recall my in-class description of Roe v. Wade as a “wobbly three-legged stool”).
However, despite these advantages, the Cabinetmaker metaphor is likely to prove unappealing to judicial conservatives. The Cabinetmaker metaphor accepts the status quo, and assumes that change in legal doctrine will be slow and incremental. It treats all precedent equally. It incorporates the doctrine of stare decisis and calls for judges to follow precedent in all but the rarest cases. A cabinetmaker begins each day with the expectation that they will follow the same blueprint that they applied to the last cabinet. They do not decide one day to stop making cabinets, and become violin makers.
Originalism has a powerful hold on the minds of judicial conservatives because it is a theory that denies the legitimacy of non-originalist precedent. Therefore, an originalist judge considers himself justified in refusing to adhere to precedent that he views as “wrongly decided.” Before any prescriptive model of judging is acceptable to judicial conservatives, it must provide for a means of un-doing liberal precedent. The judge as Cabinetmaker metaphor does not do this. Therefore, judicial conservatives will embrace the Umpire metaphor and overlook its obvious defects.
It would be folly to read too much into these three competing metaphors. They do not arise from any sort of critical analysis. The Umpire metaphor had its origin in a comment by Justice Roberts during his confirmation hearings. The raw materials from which Senate Republicans constructed the Wise Latina metaphor came from the “stump speech” that Judge Sotomayor regularly delivered to various law schools. The Cabinetmaker metaphor was chosen and emphasized by Judge Sotomayor in order to make her less threatening to moderate Republicans and therefore more likely to sail smoothly towards confirmation.
None of these metaphors were put forward as a closely argued, carefully considered explication of a particular judicial philosophy. Instead, they were used as simplistic tools to convey a particular message about what judges do to the general public. During the course of the Sotomayor hearings, the media inflated the Umpire and the Wise Latina metaphors to the point where they seemed to represent the yin and the yang of theories of judicial process. As a result, Judge Sotomayor’s Cabinetmaker metaphor came across as evasive. By presenting a third alternative view of judging, the Cabinetmaker metaphor was perceived as an attempt to change the subject (which it was).
However, before we put these metaphors back onto the shelf, to be dusted off at the next confirmation hearing, we should pause to further examine the messages that these metaphors are sending to the general public. Scientists who study the human brain tell us that metaphors have a powerful impact on the human mind. This is because metaphors create the internal narrative that our mind uses to understand the exterior world. Once our mind chooses to adopt a particular narrative, that narrative becomes one of the many “stories” that our brain applies to predict outcomes.
The recent controversy over the arrest of Harvard professor Henry Louis Gates, Jr. is illustrative. When we human beings hear the word “policeman,” our mind immediately applies an internal narrative that creates certain expectations of how a policeman should behave (catching criminals, helping victims, acting heroically). When our brain receives information that a particular policeman has behaved contrary to our internal narrative (i.e., by behaving rudely towards a law abiding citizen), this creates a disconnect between the fact and the narrative that our mind tries to resolve.
If the policeman narrative has a strong hold on our brain, then the contrary information will provoke an immediate negative emotion in our mind. This is because this particular policeman did not behave in the way that our internal narrative tells us that a policeman is supposed to behave. In order to avoid experiencing this negative emotion, our mind may reject the contrary information (the rude behavior didn’t happen) or, in instances where the original policeman narrative has only a weak hold on our brain, replace it with a different narrative (policemen are racists). Scientists who study the brain tell us that this process occurs immediately, and without any conscious deliberation on our part.
Therefore, the metaphors put forth during the Sotomayor hearings will greatly influence the way in which the public understands how federal judges should behave. If the public embraces the narrative of a federal judge as an Umpire, then it will expect judges to behave in a way consistent with that narrative. Most significantly, the public will react negatively to a judge who does not behave in a way consistent with the expectations created by their internal narrative. I assume that we would all agree that it is dangerous to generate public discontent with the federal judiciary for performing the very role envisioned for them by the Constitution.
As academics, we try to explain what judges do in the courtroom on the basis of reasoned inquiry. But our academic theories stand little chance of influencing public opinion if they run counter to the public’s chosen narrative of how judge’s should behave. Law professors ignore the influence of metaphors at our own peril.