Earth to Orrin Hatch: Even Conservative Judges Make Policy!

Now it's Orrin Hatch's turn to go after Judge Sotomayor. Hatch, a member of the Senate Judiciary Committee (and thus a gatekeeper for potential Supreme Court nominees) recently said that Sotomayor has a "problem" because she previously stated that courts of appeals "make policy." Sotomayor apparently made the comment during a conference at Duke University. Fox News played a video clip of Sotomayor's comment while Hatch appeared on the network for an interview.

The clip is too short to give context to the statement, which makes it the perfect scare tactic. Hatch has responded to the video with typical political hysteria:

I'm not very happy about judges who will substitute their own policy preferences for what the law really is, who think that they can run the country from the bench when they actually have a limited role.

But saying that judges "make" policy is not the same thing as saying that judges "substitute their own policy preferences for what the law really is," and it certainly does not endorse the idea that judges "can run the country from the bench." I am not aware of any rulings in Sotomayor's nearly 20-year judicial career that explicitly or implicitly embrace the scarecrow position that Hatch articulates. Hatch, like Rosen, has prejudged Sotomayor without engaging her work -- even though he concedes that "she has a whole raft of opinions that I think would have to be scrutinized very carefully" (emphasis added).

Do Judges Make Policy: Yes and No
Although the extremely short length of the video makes it impossible to know what Sotomayor intended her comment to convey, it is possible to examine the issue of judges and policy in a broader context. The question is far more complex than Hatch acknowledges.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy. So, Hatch's statement about imperial judges hardly describes the federal bench, and it certainly does not describe Sotomayor's judicial philosophy, which many people view as centrist.

The second way of approaching this issue is more complex. Given the decreasing ability or willingness of the American public to engage complex arguments, I thank the few of you who keep plowing through this essay.

Conservative and Liberal Judges "Make Policy"
When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle. Because it is popular to assume that judicial policymaking is unique to liberals, this essay primarily examines conservative judicial policymaking. Consider the following set of affirmative action cases.

Parents Involved in Community Schools v. Seattle School District Number 1
In Parents Involved in Community Schools v. Seattle School District Number 1, the Supreme Court invalidated policies adopted by Seattle, Washington and Louisville, Kentucky that were designed to prevent public schools from becoming racially homogeneous. Five members of the Court, including Justice Kennedy, held that the policy was unconstitutional. But in his somewhat overlooked concurring opinion, Justice Kennedy argued that he was open to other measures that could maintain or achieve diversity. He then proceeds to list those alternative policy choices:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.

Kennedy is one of the most powerful members of the Supreme Court. Because he is the sole "moderate" (this is a highly relative description) among an even numbers of conservatives and liberals, his perspective will likely determine the outcome in very divided cases.

Even though Kennedy's opinion simply interprets the constitution, it is difficult not to view his "suggestions" in Parents Involved as "policy." After the ruling, school districts across the country began implementing new policies designed to create or maintain diversity while adhering to Kennedy's specific policy requirements. Kennedy and the conservatives believed that the existing policy choices were unconstitutional. The alternatives Kennedy suggests, however, would be acceptable to him even if they achieved the exact same result as the ones he voted to invalidate in Parents Involved.

Lawyers and legal scholars prefer to call Kennedy's opinion "doctrine," but if it defines the boundaries around which acceptable policy can operate, the opinion is not a passive bystander in policy debates regarding educational diversity. Instead, it is a major player, as demonstrated by school districts shifting their policies to meet Kennedy's preferences.

Richmond v. Croson
In Richmond v. Croson, the Court struck down a set-aside program which allocated a percentage of municipal contracts to minority-owned business. The Supreme Court struck down the set-aside plan, even though the city argued that it was necessary to remedy discrimination in the contracting industry. Justice O'Connor authored the Court's opinion, and, like Kennedy, suggested alternative policies to achieve the goals of diversity:

[T]he city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races. Simplification of bidding procedures, relaxation of bonding requirements, and training and financial aid for disadvantaged entrepreneurs of all races would open the public contracting market to all those who have suffered the effects of past societal discrimination or neglect. Many of the formal barriers to new entrants may be the product of bureaucratic inertia more than actual necessity, and may have a disproportionate effect on the opportunities open to new minority firms. Their elimination or modification would have little detrimental effect on the city's interests, and would serve to increase the opportunities available to minority business without classifying individuals on the basis of race. The city may also act to prohibit discrimination in the provision of credit or bonding by local suppliers and banks. Business as usual should not mean business pursuant to the unthinking exclusion of certain members of our society from its rewards.

When cities follow O'Connor's suggestions, they are technically implementing their own policies, but they do so in response to the conditions that her opinion describes. O'Connor's ruling -- not the Equal Protection Clause -- defines the specific policy constraints and determines the boundaries around which all governmental actors must conduct business. Accordingly, it is difficult to separate her opinion from the subsequent policies.

Regents of the University of California v. Bakke
In Regents of the University of California v. Bakke, the Supreme Court ruled that achieving racial diversity in higher education is a "compelling" governmental interest. The 1978 ruling has immensely shaped education policy by determining how schools can pursue this goal.

Justice Powell's ruling recognized the compelling interest in educational diversity, but stated that schools could not use quotas to pursue this goal. Instead, he encouraged them to use the "Harvard plan," which he described as one that considered race as a "plus" among many other factors in the admissions process.

Since Bakke, schools all over the country require applicants to submit personal statements and essays, which allow prospective students to express important dimensions of their background and personal struggles to demonstrate their contribution to diversity. Admitting students who write about their experiences with racial or gender discrimination or disadvantage is a constitutional method of creating diversity -- even if the number of students of color admitted each year mirrors the outcome that a quota would have achieved (a point the dissent in Bakke raises). Bakke has greatly impacted the admission of students to institutions of higher education.

Other Cases: One "Conservative," One "Liberal"
Although the preceding discussion focuses on "policies" implicated in the Court's affirmative action doctrine, the same argument applies in other contexts.

Plessy v. Ferguson
Plessy v. Ferguson is one of the most "conservative" cases by 2009 moral standards. The ruling validated Jim Crow and segregation. The Supreme Court held that the Fourteenth Amendment guarantee of "equal protection" only applied to political and civil equality but not social equality. The Court, and many legal thinkers at the time, viewed racial mixing in places of public accommodation, public schools and marriage as "social" concerns. Accordingly, laws that mandated racial segregation or which prohibited interracial marriages did not violate the constitution.

The Court held that in order to satisfy the equal protection requirement, states simply needed to provide "separate but equal" facilities. This holding does not create the policy of equal protection (the Fourteenth Amendment does that), but it certainly establishes boundaries around which states could legislate. And while the "equal" part of the standard would remain elusive, in the 1950s the Supreme Court began to take the equality requirement seriously and invalidated "blacks-only" higher education programs that provided grossly inferior facilities and training.

Roe v. Wade
Roe v. Wade epitomizes the horrors of liberal policymaking for conservatives. In that case, the Supreme Court ruled that the right to terminate a pregnancy was a protected "liberty" interest, guaranteed by the Due Process Clause of the Fourteenth Amendment. The Court, however, held that states could legitimately protect the health of women undergoing abortions and safeguard potential life.

The Court then mapped out an approach which allowed states to ban abortions altogether after "viability," unless they were necessary to protect a mother's life or health, and to regulate abortion providers so that the procedure would not imperil a patient's health. The Roe framework was technically "doctrine," but it greatly constrained the ability of states to regulate abortions prior to viability. Consequently, the case established the minimum standard for nationwide abortion policy until it was modified by the Court in 1992.

Closing Thoughts
The country deserves reasoned deliberation and reflection over Supreme Court nominees. Thus far, I have seen juvenile antics that do not even pretend to examine Sotomayor's judicial record.

Immediately after Justice Souter announced his retirement, a stream of white male commentators announced their anxiety over a woman of color sitting on the Supreme Court. Apparently, having just two white women on the Court in its entire history is as much as some people can bear. Then Rosen publishes an article that describes Sotomayor as a "gamble," even though his essay contains factually incorrect information and reviews of Sotomayor that sound a lot like petty gossip. Now, Hatch is using a short video clip, divorced from the context of a longer panel discussion, in order to describe her as a "problem" candidate.

Sotomayor's critics have not reviewed one judicial opinion she has written, nor have they referred to the ABA evaluation of her qualifications. Instead, they keep focusing on irrelevant criteria for assessing her competence. Racism and sexism also use irrelevant criteria to defeat qualified individuals. Regardless of whether Sotomayor's critics are sexist and racist, the end result of their actions looks the same.