Tuesday, June 16, 2009

Supreme Court nomination among a list
of interesting issues this summer

This summer will be very interesting. General Motors has a new president who says he doesn't know anything about making cars. Barack Obama wants the government to decide how much executives should be paid. The president's crazy-uncle pastor, Jeremiah Wright, is claiming the Jews are keeping him from meeting with the president.

Mr. Obama is proposing cuts in Medicare reimbursement, a system that already doesn’t pay its fair share, and the Democrats are trying to nationalize healthcare. North Korea’s Dear Leader is working overtime to develop nuclear weapons and a rocket to deliver them. Iran’s election has created violence in the streets.

And there is the nomination of Sonia Sotomayor to the U.S. Supreme Court, which deserves very careful study.

The justice system of the United States operates under the theory that the law should be viewed objectively with the determination of innocence, guilt, liability or whatever made without bias or prejudice: Blind Justice, symbolized by the blindfolded statue of Lady Justice. It is the idea behind the United States Supreme Court motto “Equal Justice Under Law” which is the symbol of the judiciary.

Judge Sonia Sotomayor is President Obama’s first nominee for the United States Supreme Court. She has been on the federal Circuit Court bench for a long time, and much has been made of the fact that if confirmed she will be the first Hispanic to serve on the nation’s highest court. Administration officials and supporters say Judge Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.

However, some colleagues and law clerks who have worked with her have reservations about her, raising questions about her temperament, judicial craftsmanship, and her intellectual ability, issues which should not be ignored. But the far more serious questions arise over whether she can fairly and dispassionately apply blind justice.

Judge Sotomayor has raised eyebrows with some public comments, one of which was an admission that higher level courts have become the place where policy is made, a concept at odds with the idea of a judiciary that interprets the law and leaves policy making to the Congress and the administration. This is troublesome because of another comment: “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,” she said.

Are wise Latina women with a richness of experience somehow better at impartially applying the law than white males whose experiences are different, and presumably less rich?

It’s true that policy is formed as a by-product of the process; when laws are applied to a real world situation, guidelines for future situations are created. But creating policy is not a primary purpose of the process. In other words, impartial application of the law creates policy, de facto, but ruling a certain way in order to create a particular policy is improper.

The United States Supreme Court is a venue for applying laws neutrally to reach a just conclusion, not a place to manipulate the law to correct some social imbalance, real or imagined.

This is a point our Founders understood, even if many judges and politicians do not. Thomas Jefferson said "the instability of our laws is really an immense evil." Alexander Hamilton and James Madison warned of the evils of laws that "undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow."

In many ways judges are not so different from baseball umpires. Umpires have rules that direct them in their work, judges have the U.S. Constitution and the laws of the land, and it is not within the authority of either to change the rules in the middle of the game, based upon who is at bat or in front of the court.

Imagine if when calling balls and strikes the home plate umpire empathized with the batter instead of objectively calling pitches, or took into consideration the race or economic circumstances of the batter, and decided that since ol’ Vinny was a good guy who rose up from a bad home life, maybe he’d give him a walk instead of a strikeout? Or that Team A really needs a run worse than Team B needs an out, since Team A hasn’t won a game all season? Is this what the rule of law and the concept of justice are all about?

Unlike baseball, the law is not a game. It is a deadly serious matter that affects the lives and property of citizens of the United States, and that’s why the law must be stable and free from the vagaries of judges’ social philosophies. There are places where social inequalities can be addressed and rectified. The courtroom is not one of them.

Judge Sotomayor has said publicly and openly that factors other than legal ones should enter into the judicial process, indicating that she will remove the blindfold from Lady Justice and substitute her own personal biased views for the neutral consideration of the law. That is not acceptable.

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