November 5, 2009

"For me, it's always been taking the facts of the case and applying them to the law."

Said former Wisconsin Supreme Court Justice Louis Butler, testifying before the Senate Judiciary Committee yesterday, in a hearing on his nomination to the federal district court here in the Western District of Wisconsin. He is, in what has become typical confirmation hearing ritual, asserting his faithfulness to the law and attempting to quell charges of judicial activism.

But isn't that quote interesting? In the established liturgy, judges aver that they apply the law to the facts. For example, Sonia Sotomayor said: "The job of a judge is to apply the law... The judge applies the law to the facts before that judge."

Butler, however, said, "For me, it's always been taking the facts of the case and applying them to the law." He said that he would apply the facts to the law. Now, I don't for one minute believe that he meant to flip the ritual phrase around. I think if he were confronted with the point I'm making here, he would immediately switch the words back to the liturgical form used by Sotomayor and countless others:  "The judge applies the law to the facts before that judge."

Think what it would mean to apply the facts to the law. You begin with the factual context of the case. That is the part you know. Then, you must find the law through the use of the facts. Imagine a judge who really believed that the facts determine the law. Read this important interchange from the Sotormayor hearings:
KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....

KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.
Wouldn't a judge applying the facts to the law do what President Obama said he thinks a good judge will do?
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I.e., apply the facts to the law.


former law student said...

He's just thinking of IRAC, I believe. You try to match the facts of the case to the elements of the legal rule, like a kid pasting stickers in a sticker book.

blake said...

Wouldn't that be the very definition of legal activism? (i.e., you've applied the facts as you see them to come up with the law as you wish it were?)

wv: cryawnni

(Native American tribe known for freezing the heads of their dead.)

peter hoh said...

There must be a law-facts continuum.

Bissage said...

I would imagine that house painters don’t spend a whole lot of time fretting over the distinction.

rhhardin said...

The dartboard of justice.

Replace the scales.

Florida said...

The law no longer even seeks to attain justice.

The laws of our country flow directly from a Constitution which has been burnt. The Constitution is meaningless.

Judges today look for reasons to create whatever they think justice means to them politically. That is the essence of Sotomayor. That fucking bitch lied through her teeth during her confirmation.

When the revolution comes, they always kill the lawyers first.

There's a reason for that.

miller said...

Justice served doesn't mean truth served or even that the right person gets punished. It just means "we went through this process."

I rather like the idea of a politicized judicial system, because we finally will be like the rest of the world.

Richard Dolan said...

These kabuki-inspired dialogues at confirmation hearings can be more revealing than perhaps they were intended.

As Ann says, the nominee's statement about "applying the facts to the law" was undoubtedly a slip of the tongue. But it also sums up how the common law advanced in England and the US over a long period. The development of tort law as an early form of economic regulation was a classic example (at least when I was in LS). Judges fashioned the legal rules to accord with what they thought was the most sensible economic allocation of risks, to 'advance progress' as it was sometimes phrased. The "applying the law to the facts" idea is rooted in models of positive law, which are the norm in today's regulatory state and ultimately harken back to the idea of 'sovereignty in Parliament'.

Both traditions live side by side in American law today, and often tug in different directions. The idea that common law ends where positive law begins has some force, too, but it hides more than it reveals. As it plays out daily in American courtrooms, it's mostly a question of more-or-less, not either-or.

But unlike a courtroom, a Senate hearing is not the place for the truth, the whole truth and nothing but the truth. A Senate confirmation hearing is much better suited to kabuki-like dramas where heroes and demons show up with the usual masks and costumes, so that you can tell who's who even if you don't speak the language.

Joe M. said...

Vico, The Study Methods of Our Time. Chapter 11 or 12, regarding Roman law.

Flexo said...

Ah, the progeny of Roe strikes again.

But however one phrases it, the ultimate practice once confirmed will be the same -- outcome determinative "judging." Decide on the outcome you want, and then justify it with selective use of facts and a hunt for whichever "law" fits or, if none, they simply declare that what they think the law should be is what the law is.

Today's judiciary and legislatures believe themselves to be the makers of law.

That is a far cry from common law days, when judges understood themselves to be only the discoverers of law by an examination of right reason.

But why tether yourself down to things like right reason (or written positive law) when you can be like gods? When you can declare by fiat what is and is not law?

Brad V said...

Good catch.

It's difficult to shake out of the tried and true drone that the phrase - and even its distortion in writing - evokes.

traditionalguy said...

Not so fast here. The Apellate Judges are always mixing and matching. The SCOTUS only takes cases whose facts are what they are looking for, with a few exceptions. The cases that I have appealed were sometimes USED by the Apellate Judges to affirm or to create an extension of the latest Doctrine/Rule of the Court...and when a fact in my case did not line up right for that, then they simply misstated ( made up) those facts to achieve their goal of a good precedent. Remember that you are always reading an opinion that the Judge wrote "stating" the facts that he/she applies the Law to for a precedent to govern the next several decades of litigants. Law is fun and is frustrating too. Judges ain't saints.

Peter Friedman said...

Professor Althouse -- isn't finding the law through a consideration of a specific case's facts really in fact what the common law system does?

I'm not suggesting the judge didn't misspeak, but really you're being remarkably flip about an issue that doesn't reduce itself to phrases like "balls and strikes," "empathy," "activism," "fidelity to the law," and any of the myriad other placeholders thrown around in the debate as largely takes place.

But you're a law professor. Where does the common law come from?

traditionalguy said...

Hey Florida...You and who else plans to kill all the lawyers? Most lawyers have guns and know how to use them. We are also friends with all of the police in the community thru years of mutual respect and courtesy. That might be a strategy you should adopt before promoting the mass murder of better people than yourself..

mccullough said...


The flip side is when the judge ignores some important facts so the judge can use the case as a vehicle to make/extend/clarify the law.

Judge Posner is the most egregious example of this.