![\"scraper_oblique_rear\"](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2009\/07\/scraper_oblique_rear-150x150.jpg\" "\\"scraper_oblique_rear\\"")
The confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative.\u00a0 The public tuned in expecting a discussion of the nominee\u2019s qualifications and a debate on the role of the Supreme Court in our constitutional system.\u00a0 What they got, instead, was a battle of metaphors.<\/p>\n
Republican Senators on the Judiciary Committee compared the ideal Supreme Court justice to a baseball umpire.\u00a0 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.\u00a0 The umpire metaphor is designed to support the view that judges apply the law objectively and even handedly.<\/p>\n
While the umpire metaphor expresses a commendable aspiration, one can\u2019t help but wonder whether this is an attainable goal.\u00a0 <\/p>\n
Even on its own terms, the Umpire metaphor does not seem to accord with human behavior.\u00a0 Baseball umpires are notorious for having different strike zones, and for applying strike zones inconsistently, in ways that affect the outcome of games.\u00a0 There have been persistent calls <\/a>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.\u00a0 If umpires are not perfect, is it fair to demand perfection from judges.\u00a0\u00a0\u00a0<\/p>\n \u00a0In 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.\u00a0 It is in our discretion that we express our humanity. \u00a0Judge Jose Cabranes (the \u201cgood Hispanic\u201d on the Second Circuit, according to the conservative critique of the Ricci<\/em> firefighters case) defended the individuality of the judging process in his 1998 book Fear of Judging<\/em>.\u00a0 He was writing in the context of the federal Sentencing Guidelines, and their attempt to limit the sentencing discretion of judges:<\/p>\n \u00a0\u00a0\u201c[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.\u00a0 We must recognize, in other words, that no system of formal rules can fully capture our intuitions about what justice requires.\u00a0 The federal Sentencing Guidelines of today are based on a fear of judging: they attempt to repress the exercise of informed discretion by judges.\u00a0 Instead, in the typical case, the judge is supposed to perform an automaton\u2019s function by mechanistically applying stark formulae set by a distant administrator.\u00a0 The unhappy consequences of such a system are borne by all participants in the sentencing process, including the judges themselves.\u00a0 As one federal judge has put it, the Guidelines \u2018tend 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.\u201d\u00a0 [p. 169]<\/p><\/blockquote>\n \u00a0The Umpire metaphor should be rejected for the same reason: it is an attempt to appeal to the fear of judging.\u00a0 The metaphor is designed to undermine any exercise of discretion by judges in the mind of the general public.\u00a0 Most significantly, when a federal judge exercises their constitutional power to \u201csay what the law is,\u201d 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.<\/p>\n \u00a0The Sotomayor hearings contained a second metaphor that was used to describe a Supreme Court Justice who is not objective.\u00a0 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.\u00a0 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.\u00a0 It was put forth in order to provide a negative contrast to the Umpire metaphor.<\/p>\n \u00a0The Wise Latina metaphor is actually a more honest description of what judges do than the Umpire metaphor.\u00a0 Life experiences do influence how judges view facts and precedent.\u00a0 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.\u00a0 Judge Sotomayor\u2019s 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.\u00a0 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.<\/p>\n \u00a0Not surprisingly, in her testimony Judge Sotomayor chose to embrace a third metaphor — one that is distinct from either the Umpire or the Wise Latina.\u00a0 In describing her approach to the law, she put forth a vision of a Supreme Court Justice that I will call the Cabinetmaker.\u00a0 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.\u00a0 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.\u00a0 The result is a piece of furniture that reflects the cabinetmaker\u2019s influences, but that does not substitute the cabinetmaker\u2019s own taste for the client\u2019s desires.<\/p>\n