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?Wouldn't a judge applying the facts to the law do what President Obama said he thinks a good judge will do?
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.
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.