Wednesday, July 15, 2009

Lady Justice

To the extent that I've been able to stand it, I've been watching the Sotomayor hearings. I couldn't watch much of the first day, when the august Senators spoke numbingly to their respective bases; but the questioning on day two has been interesting. Being a proud Agno/Atheo-American of Caucaso-Judeo heritage, I have some certainty that my opinions are worthy.

Much is made of the "empathy" trope; in fact, I wrote about it in disagreement with President Obama. More is made of the "wise Latina" comments. And whereas it seems as clear as fine crystal that Judge Sotomayor's decisions have been based on existing law (and that, as far as I can tell, she's far less of a judicial activist than Scalia, Roberts, Alito, whose opinions are full of rationalization that have nothing to do with law), I do think there are interesting questions at hand.

Why is it that the Supreme Court, charged with interpreting and applying law, so often provides diametrically split decisions? And why is it nearly always predictable on which side of a case a given Justice will come down?

Clearly, "the law" isn't clear. If it were, there'd be no reason for judges. Even more clearly, people look at a set of facts and draw different conclusions. Invading Iraq was a brilliant idea, it was the worst decision any president has ever made. It's made us safer, it's weakened us tragically. Universal health care is a right, it's a privilege. Deficits are necessary at the moment, they will send us to ruin. Senator Kyl asked Judge Sotomayor if she'd ever made a decision for which she hadn't found a legal basis but relied, instead, on her "heart." (The context was his derision at President Obama's statement that 95% of the time the law gives you the answer, but 5% of the time you must rely on your gut, or heart, or whatever body part is most appropriate.) No, was her answer. As, I'm certain, would be Justice Thomas's regarding his lone dissent in a recent 8 - 1 court decision.

In saying what he said, and in her comments about her gender and ethnicity, President Obama and Judge Sotmayor were stating the obvious. "Obvious," however, and "uncontroversial" are far from the same thing. Nor, as we see hourly in our political discourse, are complex points -- ones that can't be reduced to five words and put on a bumper -- regularly submitted to deep thought. When the law is less than black and white (stop for a red light, go on green vs. "unreasonable" search and seizure, for example), people will differ. There's the 5%: when you must apply judgment and insight. Which comes -- ta da! -- from one's background and experiences. Hardly, it seems to me, the bailiwick of liberals any more than conservatives. And yet, here we are, listening to drivel from our elected officials. (Some of whom, it should be said, don't even try to hide the fact that they're applying a double standard.)

There's an implication, here, that others have stated better than I: white Christian heterosexual maleness is the "norm," the baseline, the objective standard. Neutrality. It's only those who differ from those descriptions that have prejudices or "agendas." And yet, Antonin Scalia and David Souter, both of whom are in the preceding categories, reliably disagree almost always. Maybe we need to add "conservative." Guess so.

What poppyphallus!

We are who we are: the sum of family, life experiences, genetics, upbringing, schooling, uncountable other influences. To say otherwise is to deny reality; even dumber, perhaps, than insisting our planet is 6000 years old. If two highly educated and intelligent Justi can look at a case before the Supreme Court and come to opposite conclusions, how else to explain it, at least in part, than by preconceptions and prejudices, by their singular world-view? And why the assumption that the only people who assess facts based on the totality of their experiences are, by definition, non-white, non-male, non-Christian, non-heterosexual, non-conservatives? It's simply a foolish proposition.

The difference between Sonia Sotomayor and the other justices now sitting is that she goes into it with a far greater judicial record than any of them had when nominated. It is, in fact, apparent, that she is a judge's judge. She's like my dad was: an applier of relevant law to the facts at hand. She's the opposite of a judicial activist. If, off the bench, she's said some controversial things, they most clearly are NOT reflected in her cases. Nor ought they be considered as controversial as some claim.

If the definition of judicial activism is going beyond law to advance an agenda, and if one measure of that is the striking down of existing laws and statutes, then the current court's conservatives are far more activist than the liberals. I'm probably not the best judge of the validity of such a standard; nevertheless, it's simply false on its face to suggest that there is a class of people -- any class -- who, by default and definition, embodies a form of intellectual purity from which all others diverge.


Anonymous said...

Well, Sid, there goes the writer's block.

You're right of course, there is never much of a surprise about how the neocon justices are going to interpret the law. If you are a defendant, or you are fighting a big corporation, or you are a citizen vs a state, basically you are screwed because, they always serve the interests of power.

When Roberts told us that he is "Just an "Umpire", I knew he was lying through his teeth. Lately, the "Umpire has been beating the drum to overturn civil rights law.

And, of course, nobody will ever accuse Thomas of empathizing with black people; he has never gotten over being appointed because of the color of his skin, despite the lowest recommendation ever issued by the American Bar Association.

Scalia, fugedaboudit, just thinking about what he did to President Gore makes me sick.

Glad to see you back here!


Beer Bottle said...

So, assuming your father wasn't a Latina, then Sotomayor was de facto a better judge? After all, she had those rich life experiences that white guys can't have.

Is there anything that Latinas would be worse at? Or can they only be better at some things?

Beer Bottle

Sid Schwab said...

Oh, man, BB, you're like old faithful. Shall I make the point all over again, or will you just go off again, as predicted, without even the slightest nod to it?

It's nice to be able to count on things in life, and you're one of the few that remain. Like atherosclerosis, but less productive.

Beer Bottle said...


Doesn't sound like such a find, now does she?

Beer Bottle

Sid Schwab said...

Her opinion was shared by the entire panel. It was reversed 5-4. Every one of Alito's decisions that went to the S. Court were reversed.

She's made thousands of decisions. The best judge ever, my dad, had a couple of cases reversed by the state supreme court. Pissed him off. But it happens.

The title of the site of your reference source says it all. Not exactly a motto that bespeaks open-mindedness. What a surprise.

Beer Bottle said...

The point of the article is that Sotomayor either 1) doesn't understand the the SCOTUS all disagreed with her, or 2) lied about it. She insisted that "there were a lot of opinions in that case." Not really--but all nine real justices disagreed with her.

Hey--not to worry! She'll sit on the Court, 'cuz there's enough dems to make it happen! Fiinally--a wise Latina on the court, ready to use those rich experiences that white guys can only dream about in their uninteresting little lives.

Sid Schwab said...

that white guys can only dream about in their uninteresting little lives.

So I infer you actually agree with my post, much as it must pain you: ALL people have experiences that they bring to bear; that there's no such thing as a judge who wouldn't, and that the attempt of the Rs to say otherwise is foolish.

I feel much better about you now.

As to the point of your article: the decision rendered was 5-4, not, as Rush suggests, 9-0. That various judges had various objections does not change that number.

The fact is that she has a far longer judicial record than any current justice had when they began. In all of that record her impartiality and lack of agenda-driven judging is clear. The same cannot be said for Roberts, Alito, Scalia. Nor, for that matter, those on the left. The fact is it's liberals who should be more worried about her than conservatives. She is exactly the sort of judge conseratives always call for, but never nominate. With her, Obama broke the mold. NOT an ideologue, no matter what she's said in speeches.

I rant and rave here. In my practice of surgery I never did. Nor, when patients asked me to pray with them, told me they knew God was working through me, did I ever condescend to argue as I have here. I'll bet that's not true of Tom Coburn, for one.

There's simply NO evidence that Judge Sotomayor failed to separate her personal views from her judicial ones. In that, she's clearly an example for everyone. And yet, simply because of politics and their inherent insanity, the RWS™ can't see or admit it.

Let the trashing begin, of Lugar and Graham, and all the rest who vote for her.

Beer Bottle said...

"As to the point of your article: the decision rendered was 5-4, not, as Rush suggests, 9-0. That various judges had various objections does not change that number."

Rush? Are you still listening to talk radio?

Decision was 5-4, but the reasoning was all against her.

I do agree with you, and I'm glad to see that you disagree with Sotomayor, who said that her rich experiences will make her render better judgments. Better than what? Obviously, than white guys' experiences.

"Let the trashing begin, of Lugar and Graham, and all the rest who vote for her."

This will happen. Republicans are not lockstep. Will any dems vote against her? Hmmm...maybe they are lockstep, huh?

Sid Schwab said...

Republicans are not lockstep.

Another good one. I'm admiring your keen sense of humor more and more. All those guys that voted for the stimulus, for health care. Yep, full of rebels. But S.C. nominees have never been voted on strictly party lines. Anyhow, you're a regular knee-slapper, and I really appreciate it.

The trashing of their fellow Rs will commence on all those sites that you like to read. Traitors, and worse. Show me that I'm wrong.

Beer Bottle said...

"All those guys that voted for the stimulus, for health care."

And how many dems voted against health care?

Stimulus? Haven't you heard Obama now? It wasn't supposed to stimulate. He made it clear way back then!

Except that way back then he promised it would work quickly. Hope our grandchildren can pay off BO's folly...before our great-tandchildren have to.

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