Balkinization: On Objectivity and Personal Beliefs

Comments:

Interesting post Mark.

After seven years of reading DOJ's briefs in the detainee cases and listening to the politicians argue over the issues in those cases, it's unclear that even an analysis that conclusively refutes an argument is sufficient to overcome the subjective belief that it is correct. I read the briefs and think to myself I'd be embarrassed to author or credit anything so illogical and dishonest.

For example, the assertion:

"As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

George Bush, memo to Cheney etc, 2002.02.07

Or for another, the assertion that anyone involved in the CIA torture program, or anyone offering legal advice to those persons was acting in "good faith".

Those claims are fraudulent to whatever extent they are not the product of ignorance or incompetence. I'd say the same thing for the AUMF, which I believe is objectively unconstitutional, not that many seem to notice.

# posted by

Charles Gittings : 2:03 AM

I think the issue here is that, "A wise latina will make a better judge" is a different sort of claim from, "Extensive experience will make you a better judge", or "legal training will make you a better judge". It's more like, "Dark, wavy hair will make you a better judge", it's irrational, while the other claims are only potentially wrong.

# posted by

Brett : 7:30 AM

I have reread Mark Graber's post several times and either he has a great sense of humor or he has none. Prof. Graber seems well ensconced in academia and perhaps might be Shermanesque about a judgeship. But I wonder how members of the Senate Judiciary Committee would react to this post if Prof. Graber were nominated for a federal judgeship (most likely to SCOTUS or a Court of Appeals). I realize that Prof. Graber has written extensively on the law. But just as the focus for nominee Sotomayor was on her "wise Latina" out-of-court comment, surely Judiciary Committee Senators might focus more on this post by Prof. Graber. Perhaps comments on this post might anticipate what these Senators might ask a nominee Graber. I await such comments from both the "usual" and the "unusual" suspects.

I believe that a judge, whether trial or appellate, needs a sense of humor, something that seems to be missing from SCOTUS. Why? Well, consider Bush v. Gore, Heller and some other 5-4 decisions. (In the past I have suggested a Gilbert and Sullivan styled operetta titled "5 to 4" stealing from Dolly Parton's "9 to 5" featuring men and women in robes - but no wigs.) Who knows, maybe by the time the thread of comments concludes on this post, Prof. Graber might be deemed qualified to serve on the basis that he does indeed have a sense of humor.

BTB*, I note that Brett uses the word "will" rather than "might" with respect to the "wise Latina." Isn't this distortive?

*By the Bybee

# posted by

Shag from Brookline : 8:03 AM

Various Supreme Court justices seem to have a sense of humor ... as to those opinions, some might suggest taking them completely seriously would be a joke.

The operetta idea is good in that more than one justice is a fan of the opera, including competiting ideological justices Ginsburg and Scalia. I recently saw an off-Broadway effort concerning clerks from two rival chambers that fall in love ... not bad. So, the potential is there.

Writin 5-4
What a way to make a livin
Barely makin law
Its all fakin
And no misgivin
They say use the law
And they never give you credit
Its enough to drive you
To the law if you let it

maybe not ...

# posted by

Joe : 8:31 AM

"I recently saw an off-Broadway effort concerning clerks from two rival chambers that fall in love ... not bad."

Joe, this may give rise to a variation on "West Side Story" involving Justice Scalia's and Justice Sotomayor's clerks as the story line. Maybe we can collaborate on the score. Apropos Heller, a song title that comes to mind is: "Are You Packin' Heat Under That Robe?"

# posted by

Shag from Brookline : 8:52 AM

As these examples and questions suggest, I suspect claims that a legal argument is subjective or based on personal beliefs do no work in constitutional commentary independent of analysis that the argument is wrong.

While advancing a holding that is contrary to the law is evidence the judge is acting to advance personal policy preferences, this does not preclude a judge advancing a holding that both comports with the law and is also his or her policy preference.

# posted by

Bart DePalma : 9:14 AM

What about factual or quasi-factual assertions of personal belief? Justices often make these (in blatant disregard of the record below and their obligations on appeal not to find new facts except on judicial notice). For example, Justice Kennedy made "factual" assertions about the impact of abortion on the psyche of women. Justice Breyer mused about showering after gym class as reflective of the impact of a strip search. Every justice in my lifetime has been similarly guilty at some point.

In these cases it's hard to say the reasoning is "wrong" in the sense that logical rules weren't followed. The flaw was starting from a false premise.

# posted by

Mark Field : 10:00 AM

In a serious vein, I think the process of the Hermeneutic Circle could well serve a judge, whether at the trial or appellate level, in making decisions. And good lawyering should help the judge. I realize and appreciate the difficulties for many of us in addressing and overcoming our personal biases. (I don't mean bias in an evil sense.) Judging ain't beanbag (although reading Beanbag at times might help).

# posted by

Shag from Brookline : 10:17 AM

"While advancing a holding that is contrary to the law is evidence the judge is acting to advance personal policy preferences, this does not preclude a judge advancing a holding that both comports with the law and is also his or her policy preference."

That statement is a good example of a couple of things....

1) Why would a ruling "contrary to the law" reflect anything other than a mistaken view of the facts, the law, or both?

Error does not imply policy; that's an ungrounded assumption on your part -- an assumption based entirely on your own personal opinions as to what is good law or good policy.

2) You frame your statement as a sort of rhetorical syllogism:

A "does not preclude" B.

The reality is that being right doesn't imply that the decision was based on personal policy any more than being wrong does; the implication here seems to be mostly that you like it when judges make rulings that agree with your personal view of good policy.

In short, another classic example of Bart's goo.

# posted by

Charles Gittings : 10:31 AM

Mark,

I'm sure there have been plenty of empirical studies on the impact of abortions on women. I'm also sure that lawyers are capable of citing such studies in their briefs, and the Justice Kennedy is smart enough to understand both. Your comment reads more like literary criticism than anything else.

# posted by

Charles Gittings : 10:42 AM

Charles Gittings said...

"While advancing a holding that is contrary to the law is evidence the judge is acting to advance personal policy preferences, this does not preclude a judge advancing a holding that both comports with the law and is also his or her policy preference."

1) Why would a ruling "contrary to the law" reflect anything other than a mistaken view of the facts, the law, or both?

You are correct. Failure to follow the law could also mean that the judge is unable to understand or also could be under political pressure to decline to follow the law or the facts. However, these alternatives are highly unlikely among elite judges with lifetime appointments.

# posted by

Bart DePalma : 11:04 AM

Non-lyrically ... "belief" seems to be used rather loosely here. When used in a critical sense, "belief" in some math concept is not really what is meant.

An "objective" test results in judgments that some reasonable sorts might disagree with. I'm unsure the value of using that word as compared to "subjective" if "belief" is going to be used so broadly. Maybe that's the point?

The concern often arises from two areas. (1) Some religious or other sort of "belief" that is largely a result of faith, not reason (2) A gut instinct of some sort that is not based on reasoned judgment.

"Reasoned judgment" is appropriate here since hatred of the Yankees etc. might actually be based on something. For instance, you might think their high payroll unfair. This is a "reason" but if you use it to in effect to suggest the game is fixed, you really are going beyond what the rules say.

It might be helpful to provide a link to the "latina judge's voice" speech.

No matter what the ultimate point is, I think she argued based on facts she read and experienced. It is not just what she "believed." Ditto Justice Kennedy, in the cited opinion.

But, personal belief and experience can color how you interpret things as it did here to some degree. This happens with all judges and has to be taken as a given when it comes to judging. This is one reason the whole "empathy" matter was overblown.

It only became more obvious when the anti-empathy senators invited people to testify to suggest Sotomayor judged wrong because they are sympathetic.

The bottom line is that human judges have to use reasoned judgment, affected by personal belief and experience, but properly restrained given the dictates of the job. Diversity to call Breyer on his limited experiences and the biases this might bring helps here.

I think that was one theme of Sotomayor's speech actually.

# posted by

Joe : 11:19 AM

I'm also sure that lawyers are capable of citing such studies in their briefs, and the Justice Kennedy is smart enough to understand both. Your comment reads more like literary criticism than anything else.

If that's literary criticism, we need more of it. Derrida be damned, but someone must hold Kennedy to a higher standard--that assertion was awful.

# posted by

PMS_CC : 11:26 AM

Kennedy's actual sentence was "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

That seems like a pretty good example of a quasi-factual belief, different in kind from the examples given by Prof. Graber.

# posted by

Mark Field : 11:54 AM

Mark,

There is nothing quasi about it. Do you seriously doubt there are some women who feel exactly that way?

No, you don't.

# posted by

Charles Gittings : 12:13 PM

Music belongs over on Volokh.

I don't know why "wise Latina" belongs in the subjective category. I'm sure that John Roberts has never had an impolite encounter with a cop, while Clarence Thomas almost certainly has (you don't have to be a Harvard professor to know that). Sonia Sotomayor almost certainly has never been in a gang, but she's probably lived among people who are. This is not subjectivity, this is exposure to a different reality, one that mocks the presumption of regularity and in which the subjective motivations of police have consequences (often physical) that cannot be ignored.

# posted by

Anonymous : 12:24 PM

Let's vary Kennedy's statement somewhat:

""While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some, perhaps many, women do not regret their choice to abort the infant life they once created and sustained."

Who can seriously doubt this, especially considering the circumstances of some, perhaps many, women who do exercise this choice?

And even those some who regret their choice to abort might feel that it was the right choice under their circumstances, perhaps wishing their circumstances had been different. Perhaps some judges regret their decisions but may feel they had no choice.

# posted by

Shag from Brookline : 1:12 PM

Charles, whether I agree or not isn't my point. My point is that Kennedy admits ha has no factual basis for saying so. What he said may very well be reasonable and true, but he said it on the basis of belief rather than evidence. Strictly speaking, that's inappropriate for the Court to do (though as I said, they all do it).

By "quasi-factual" I didn't mean that his belief was erroneous, I was distinguishing between strict statements of fact ("My name is Anthony Kennedy") and statements of mixed fact/judgment/opinion/belief. And I freely admit that the distinction isn't always clear or precisely defineable.

# posted by

Mark Field : 1:59 PM

Kennedy's statement itself is not really the problem.* It is that it is incomplete and the 'solution' leaves something to be desired.

Other women are upset that they do not have an abortion, including when it risked their health or ability to have another child. This causes much pain to some. In tragic cases, harm has come to the child(ren) as a result.

This is why the correct path is informed consent, not the fear that women would not be able to handle the truth of the hard decisions to make in this context.

People sometimes seriously second guess major decisions they make; this includes things like having or not having a child. But, the decision remains theirs to make.

---

* The term "infant life" is questionable.

# posted by

Joe : 2:03 PM

I know some think abortion causes harm to a "child" as well.

# posted by

Joe : 2:08 PM

I sympathize with Prof Graber's confusion. I frequently encounter people using 'subjective' to mean any number of other things: ‘wrong,’ ‘dumb,’ ‘non-absolute,’ ‘variable,’ and ‘open to dispute.’

The last is especially pertinent to questions of law. Of course there might be cases in which a judge simply gets it wrong according to everyone and by all standards of reasoning. (X really is an element of the offense.) For the most part when we speak of ‘getting the law wrong,’ we mean ‘did not decide as some of us believe the law requires.’

When some were criticizing Sotomayor for her ‘subjectivism,’ they really meant they feared she would not read the law as they do. Perhaps some of them are originalists or strict constructionists who think there just is The Law on every matter (i.e., there are no genuinely hard cases). My guess is that most assumed the experience of a Latina might inform decisions they would prefer to have made by someone with different experience.

# posted by

CTS : 2:11 PM

"I freely admit that the distinction isn't always clear or precisely defineable."

Or even relevant: the real problem is that you don't think such trivial facts are a sound basis for the court to be worrying about insulating people from the consequences of their own actions.

Which is a highly problematic question, and brings me right back to my original comments: you're letting rhetoric trump logic.

# posted by

Charles Gittings : 2:12 PM

Brett:

There is nothing more irrational about basing beliefs in one's experiences as a Latina than there is about basing one's beliefs on experience as a defense attorney or a military officer.

Yuo might think some kinds of experience are more important for a justice than others. That does not reduce the latter to the level of matters of taste or haircolor.

# posted by

CTS : 2:13 PM

Or even relevant: the real problem is that you don't think such trivial facts are a sound basis for the court to be worrying about insulating people from the consequences of their own actions.

If the fact were properly supported, I'd have no problem with the Court relying on it. "No problem" being used here in a technical sense, meaning that the Court would be sticking to its proper role. As Joe points out, Kennedy's assertion is problematic to the extent it ignores the other side of the issue.

# posted by

Mark Field : 3:54 PM

Mark,

Ah - so it's just a pointless digression. I stand corrected.

There's no need for Justice Kennedy to support a common sense understanding of general facts even if he was briefing the case, which he wasn't.

And again I return to my original comments. You were wrong at the start, you were wrong in the middle, you're wrong now, yet here you are cooking up new verbiage to assert that you're really right in some mysterious sense just Yoo or Addington when they 'argue' their prejudices. You just can't bring yourself to admit you're wrong and move on.

It's so silly -- and obvious, though only to those few who bother to look and have a working understanding of logic. That doesn't seem to include a lot of lawyers these daze.

# posted by

Charles Gittings : 4:54 PM

PS:

The "other side" of a trivial fact would be a trivial fallacy. Do you suppose they should be accorded equal weight because they are both trivial?

Facts don't have sides: as the saying goes, facts are facts. It's equally clear that many women do not regret having abortions.

# posted by

Charles Gittings : 5:44 PM

Right, and it's equally clear that:
1. "Some doctors may prefer not to disclose precise details of the means that will be used."
2. "Any number of patients facing imminent surgical procedures would prefer not to hear all details..."
3. "This is likely the case with the abortion procedures here in issue."
4. "It is a reasonable inference that a necessary effect of the regulation...will be to encourage some women to carry the infant to full term"

Now, in the earlier portion of the opinion, it was perfectly fine to describe intact D&Es down to their finest detail ("clutching hands" and "kicking feet", anyone?), along with a bevy of citation.

When talk of how legislation might affect action in the real world begins, suddenly we have to argue from some point of omniscience, backed by a few paltry citations scattered hither and thither. It is altogether too easy to resort to "some people may X" and "everyone knows Y" formulations, rather than providing some sort of grounded empirical support, which--as Charles suggests--should be available.

The question is: why go to such great lengths to document the process of abortion, but rely on some sort of "common sense" to infer social reactions and legislative effects?

I think it's shoddy work, and I think the sentence Mark pointed out is a red flag of a deeper disregard for the importance of social research.

# posted by

PMS_CC : 7:11 PM

PMS,

That's much better, however, even that conclusion would be an ungrounded inference: I'd think any credible social research on the topic would show that some women do indeed regret having had an abortion.

But just to be clear, I wasn't saying that the opinion or any inferences from that bare supposition would be common sense; I'm strictly talking about the basic proposition, and I haven't studied the opinion at all.

Abortion is one of the many political topics I tune out entirely. The whole question rests ultimately on metaphysics, and the law has no business imposing metaphysical beliefs IMO.... Which is not to suggest that there isn't a lot of law that contradicts me on that point. That's one of our biggest problems.

# posted by

Charles Gittings : 7:51 PM

Larry Solum's Legal Theory Blog presents the abstract of James L. Gibson and Gregory Caldeira's article "Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?" that may throw some light on this post. However, my reading pile is too high right now.

# posted by

Shag from Brookline : 6:46 AM

CTS, being a latina, "wise" or not, is not an experience, it's an ethnicity, which is compatible with any number of experiences. No, I think it's fundamentally irrational to think that being of a specific ethnicity will make you a better judge. Ethnicity isn't the sort of thing that could be true of.

There is, of course, a way of viewing the world that holds this sort of belief isn't irrational. It just happens to be a bigoted way of viewing the world.

# posted by

Brett : 12:42 PM

It's really annoying when people ignore context. Brett, the context is civil rights law and racial and sexual discrimination cases.
Here is the relevant passage from the lecture.

"In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Remember the recent SCOTUS decision regarding the 13 year old girl who was strip searched?

Something else worth considering is the arguments over bias at Fox news. All US news is biased, in favor of the US. US news organizations are proudly pro-American. Fox's sin is to sow divisions within the US consensus. It's the distinction between high and low politics. J Balkin should be amused!

# posted by

D. Ghirlandaio : 3:40 PM

This comment has been removed by the author.

# posted by

Joe : 4:10 PM

A recent CRS report "Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2009" might interest some here.

It also touches upon her use of "Latina," quoting the speech:

"If I had pursued my career in my undergraduate history major, I would likely provide you with a very academic description of what being a Latino or Latina means. For example, I could define Latinos as those peoples and cultures populated or colonized by Spain who maintained or adopted Spanish or Spanish Creole as their language of communication. That antiseptic description however... does not explain why individuals like us, many of whom are born in this completely different American culture, still identify so strongly with those communities in which our parents were born and raised."

The report is also useful in showing the various qualities that might be brought by a judge/justice. For instance, Justice Stevens' experience in the military in WWII. All such qualities and experiences are likely to add to "beliefs," including when they decide things in a simply "objective" sense.

# posted by

Joe : 4:33 PM

I realize and appreciate the difficulties for many of us in addressing and overcoming our personal biases. (I don't mean bias in an evil sense.) Judging ain't beanbag (although reading Beanbag at times might help).austin healthmate air purifier

# posted by

Unknown : 12:25 AM

Brett:

Sotomayor never said she would be informed by her ethnicity or her sex. She said that a Latina with that experience might more often than not judge more wisely than someone with out that experience in a certain type of case.

Now, perhaps you will argue that men and women, and non-hispanics and hispanics, etc., all have exactly the same range of experiences and always experience any event in precisely the same way.
I think such a claim would evidence significant historical and social ignorance. However, it would be relevant.

# posted by

CTS : 5:55 PM