The Umpire, the Wise Latina, and the Cabinetmaker

scraper_oblique_rearThe 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. 

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The Sotomayor Hearings — What We Can Agree On?

Here is something that we can all agree on. Maybe. Over at PrawfsBlawg, Howard Wasserman of Florida International says that the Sotomayor hearings have been “inane and meaningless.” This has been a widely shared reaction among liberal legal academics and lawyers. They are disappointed in (even if they are willing to excuse) her retreat into a caricature of judicial restraint. They are put off (even if they are willing to rationalize) the fog of platitudes and non sequiturs with which she has responded to questions.

Here’s an example. Our own Senator Feingold asked her what the test is for incorporating provisions of the Bill of Rights into the Fourteenth Amendment: 

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Judicial Verbosity – It’s Not Easy Being Green

paper-millAn article, “Conciseness in Legal Writing,” by my colleague Lisa Hatlen in the June 2009 issue of Wisconsin Lawyer [at 21] got me thinking.  My conclusion: I am surprised that “green” organizations do not picket at various appellate courthouses in this country, especially in Madison, Wisconsin.  A lot of trees are paying a price for judicial verbosity.

It took Judge Benjamin Cardozo about two and a half pages to write Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). Less than forty years later, it took Justice Roger Traynor only about one page more to write Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). Shortly thereafter, here in Wisconsin, it took Justice Bruce Beilfuss only eight pages to write Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). All three are landmark opinions in their respective jurisdictions, with the first two having national status. [All references here are to West reporter pages.] 

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