Judges & Judicial Process – Page 52 – Marquette University Law School Faculty Blog

The Sotomayor Hearings — What We Can Agree On?

Post author:Richard M. Esenberg
Post published:July 20, 2009
Post category:Judges & Judicial Process Political Processes & Rhetoric U.S. Supreme Court

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:

Judicial Verbosity – It’s Not Easy Being Green

Post author:John J. Kircher
Post published:July 15, 2009
Post category:Judges & Judicial Process Legal Writing

paper-mill An 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.]

Epistemological Privilege and the Law

Post author:Richard M. Esenberg
Post published:July 14, 2009
Post category:Judges & Judicial Process

As the Sotomayor hearings proceed, I thought I would turn again to the issues raised by the judge’s oft-cited “wise Latina” speech and similar remarks suggesting that there may be a connection between judicial decision-making and a judge’s ethnicity and background.

One common approach is to wonder whether this is “racist.” Shortly after the nomination was announced, I did a segment with Joy Cardin on Wisconsin Republican Radio. She seemed perplexed that I refused to assume the “racism” position, playing a clip of Tom Tancredo making that charge as if it to tell me that I wasn’t a team player.

But I think it is unfair to say that she was making a claim for some form of racial superiority.

Another common approach is to say that she was simply suggesting that judges need to be aware of the biases that arise from their backgrounds so that they can check them, and that a panel consisting of persons with different backgrounds will be more likely to, collectively, identify and deal with these biases.

I think that Judge Sotomayor almost certainly believes this, and I agree that there is a great deal of truth in it, although I may be less likely to believe that gender or ethnicity implies common histories and assumptions.

The reason that the debate has not — and should not — end with the second approach is that it is — literally — not what she said, both in the La Raza article and on other occasions.