1,000 “academics” can’t be wrong, but at least one is

More than 1,000 academics have expressed their support for Judge Sonia Sotomayor’s confirmation to the Supreme Court in a letter to Senate Judiciary Committee Chairman Patrick Leahy. Among other things, the letter vouches for Judge Sotomayor’s “careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution.” It also asserts that she “pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society.”

Jonathan Adler, a law professor himself, wonders what percentage of the professors who signed the letter actually are sufficiently familiar with her record to have reached an informed, expert judgment. Ed Whelan suspects that the answer is around 1 percent.

What most caught my attention about this story is a statement from one of the signing profs, the distinguished Arthur Miller now of NYU law school. Attempting to make lemonade out of a lemon, Professor Miller defended the one paragraph opinion in the Ricci case by suggesting that Sotomayor is a consensus builder. According to Miller, on such a difficult case, the three judges could only come to an unanimous result by eschewing elaborate language.

We’ll see whether Judge Sotomayor herself asserts this defense during her confirmation hearings, which begin next Monday. To do so would, I think, be foolish.

First, Prof. Miller assumes that it is more important for judges to attain unanimity than it is to present analysis. This is a radical notion. We see dissenting opinions all the time, but rarely do federal appeals courts decide important cases in one paragraph. That’s because dissents rarely do harm (except perhaps to judge’s feelings or their prospects of “promotion”), whereas decisions in important cases that eshew explanations undermine confidence in the judiciary.

It is odd, moreover, to suppose that the three Second Circuit judges on the Ricci panel could agree with the result and reasoning of the district court that upheld the race-based discrimination against the New Haven firefighters, but could not agree on words that would explain why they agreed. If an opinion upholding the district court’s reasoning “wouldn’t write,” that should have been the tip off (not that any was really needed) that the reasoning was indefensible, as all nine members of the Supreme Court ultimately concluded.


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