Tuesday, December 28, 2010

Parsing SCOTUS Temperament

As any attorney who has spent time actually practicing law in a courtroom can tell you:  know your judge.

That includes knowing their moods, peeves, pet issues, case law trigger arguments, even the schedule of their favorite sports teams and recent win-loss records before you ever walk into the courtroom for an argument or a hearing.

If you know their legal practice histories, what motivates their intellectual passions, what pushes their judicial buttons?  You can almost always find a way to more effectively drive the argument in court.

Why bring this up?  Because Adam Liptak in today's NYTimes concentrates up front on Justice Sonia Sotomayor showing evidence of...gasp...empathy in her opinions because she considers individual and constitutional rights versus the powers of the state in a couple of recent dissents from denials of certiorari at the SCOTUS.

Who hasn't considered the human angle in a case as they went through the factual basis background?  I mean, honestly?!?

Justice Alito does as well, he just considers it from the "worst of human action" perspective and empathizes with victims, and turning away from the vast powers of the state as infringing on individual liberties as also being a potential threat.

Perspective, here, is everything.

In Justice Sotomayor's case, she's merely continuing a strain of jurisprudential analysis that Justices Stevens, Marshall, and Brennan continued before her. 

This argument between individual liberties versus community protection and retribution has been an ongoing one in criminal law circles for as long as there have been criminal courts in this country.  (See, e.g., John Adams' defense of British soldiers way, way back in the day.)  It's actually healthy for the Courts to continue the argument because there is an ever-present struggle on this in every courthouse across the country every single day, between criminal defense attorneys and prosecutors, judges and probation officers.  And it should continue to occur as we strive for an ever-balancing system of justice.

Worse, Liptak has essentially lifted his feigned judicial empathy fainting couch from a much more insightful blog post by Mike Sacks which compares and contrasts judicial temperament and up front issues assault approaches of Justices Sotomayor versus Alito (who is shaping up to be her issues counterpoint on charged, partisan issues in criminal justice and individual rights) as compared to the more measured and careful approaches of Justices Kagan and Roberts.

From Sacks post:
Appearing rough around the edges, they [Alito and Sotomayor] send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle. In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded.
There you have the temperament crux in a nutshell: Justices Kagan and Roberts forged their legal identities in government service analyzing the law and its applicability to policy issues, in the exclusive provinces of the DOJ's upper echelons, SCOTUS chambers, White House meeting rooms, the halls of Harvard and upper federal courts, being groomed for SCOTUS as it were by their respective political party structures.

Justices Alito and Sotomayor?  Not as much.  They both did their early legal time in the real world trenches, some of it as assistant prosecutors.

Having spent time as an assistant prosecutor myself (as well as a criminal defense attorney), I can tell you that you form a very gritty, very pessimistic view of human nature at times, and you get a real world sense of justice in action on a daily basis as you see both the worst and the best of human behavior in the courthouse around you.

Once you've had to comb through a hefty child pornography and rape file, or sit with an elderly couple whose own children have stolen their retirement savings and left them penniless?  You never quite view the world in the same way again.

Ditto for having to spend time with victims every bit as irritating and smarmy as the person you are prosecuting.  I spent an inordinate amount of my legal career being thankful that I wasn't born into any of these people's families, quite honestly.

For Sotomayor and Alito, arguing both sides of the judicial temperament on criminal and constitutional issues must come as naturally as breathing, because it is those arguments that occur daily in every prosecutor's office around the country.  The best of prosecutors tries to find a way to make whatever punishment is due fit the crime that has been committed, while simultaneously trying to stay within the law themselves and balancing the aftermath of that punishment on society when it has concluded.

You never want to be a band-aid, but you rarely get to resolve any one problem because so much of your job requires you to delve into the sordid, sad details of the generally horrid lives of the people whose actions bring them to your prosecutorial attention.  Everything you do is a balancing test of some sort:  maximum sentence, minimum probation time, weighing risks and past histories and perceived dangers predicated on future potential for harm and lack of remorse versus the potential for change in someone not yet fully jaded.

Above all, though, you weight the public's interest in protection, punishment and public safety against the public's interest in justice, constitutional rights and liberty.  The fact is that it comes down to making your best guess based on evidence and facts in front of you, and that even the best folks make mistakes -- too light a punishment for someone who commits another crime, for example -- but you do the best you can.

I fear that this article by Liptak will start yet another Beltway fainting couch frenzy about Justice Sotomayor and empathy (or worse female justices and empathy), when what she is really doing is exactly the same as every other justice, male or female, before her:  looking at the facts in front of the Court, picking apart the arguments thereon, and pointing out the flaws as she sees them.  In other words, she's doing her job and arguing the merits and the law based on her own perspective.

Which is exactly what we hire every single justice to do on SCOTUS, isn't it?

Let's stop trying to politicize the Court from the outside, shall we?  It's already having enough difficulty finding common ground inside the walls without people trying to stir the pot from the outside, too.

(Photo of a little kitty licking its chops, akin to the Beltway journamalism I fear will be an outgrowth of this, via fofurasfelinas.)

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