Sotomayor Watch #3
The WSJ editorial today makes several good points to guide the vetting of Sonia Sotomayor. Three very insightful paragraphs:
"In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom.
This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.""
...
"As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record."
If only the New York Times et al could write a paragraph like the last! Educating the populace, for either the left or right, is the appropriate approach. The nomination will take care of itself.
Read the whole editorial here.
"In making Sonia Sotomayor his first nominee for the Supreme Court yesterday, President Obama appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom.
This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged. In the President's now-famous word, judging should be shaped by "empathy" as much or more than by reason. In this sense, Judge Sotomayor would be a thoroughly modern Justice, one for whom the law is a voyage of personal identity.""
...
"As the first nominee of a popular President and with 59 Democrats in the Senate, Judge Sotomayor is likely to be confirmed barring some major blunder. But Republicans can use the process as a teaching moment, not to tear down Ms. Sotomayor on personal issues the way the left tried with Justices Clarence Thomas and Sam Alito, but to educate Americans about the proper role of the judiciary and to explore whether Judge Sotomayor's Constitutional principles are as free-form as they seem from her record."
If only the New York Times et al could write a paragraph like the last! Educating the populace, for either the left or right, is the appropriate approach. The nomination will take care of itself.
Read the whole editorial here.
Labels: Sotomayor Watch
posted by Jim | 8:49 AM
8 Comments:
Just as a point of comparison on the "empathy" issue, I saw this bit of transcript from the Alito hearings (taken from http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006011101148.html):
U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
U.S. SENATOR TOM COBURN (R-OK):
You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.
Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?
ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.
ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.
And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
So those are some of the experiences that have shaped me as a person.
COBURN: Thank you.
---
Clearly the Right will have issues with almost anyone Obama nominates, as the Left has issues with nominations from the Republican side. The whole process seems to have turned into high theater, mostly of use to various groups to whip up fund-raising with their base!
"Empathy: the power of identifying oneself mentally with (and so fully comprehending) a person or object of contemplation."
from The Oxford American Dictionary and Thesaurus (2003)
Your quote from the Alito hearing is interesting and certainly shows he has "empathy" as Sonia Sotomayor does.
Problem is he carefully and specifically states this will not effect his decisions:
"And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result."
and I do not hear this from either BHO or the nominee.
I agree with Karl Rove'a WSJ article today titled "Empathy is code for Judicial Activism". I hope you agree that is the case. Would be interested if you do not.
In Alito's case that certainly was not his meaning. I hope you would also agree with that.
I just wish the Dems would admit that they want a Judicial Activist and stop the coding! It would make our judgements easier, and would probably cost the Dems lots of elections and nominations, which is why they do it.
I think Daniel Larison has some pretty level-headed comments on the arguments going around on Sotomayor. For example: http://www.amconmag.com/larison/2009/05/27/the-radical-status-quo-menace/
Haven't seen the Rove article, but in this case I have to say that I don't believe that Obama is using some sort of codeword... or else somebody forgot to give me the secret decoder book! :)
Everyone obviously brings their own experience to the table, whatever that might be. So far at least I have not seen much clear evidence that Sotomayor is particularly 'activist', but I'd be happy to have particular decisions pointed out that indicate such a position. I'd prefer analysis of decisions to analysis of Rove's punditry!
PS. Congratulations on the new grandson!!!
Thanks! Spent a half hour holding him last evening and he is big (8 lbs. 15 oz. and beautiful. Funny how all my grandchildren are the best looking I've ever seen! (Perhaps a little bias in that sentence, kind of like your showing bias by not recognizing the bias in the NYT et al!!).
Read Daniel Larison and he simply confirms a point I made a few days ago: time does not exist for the left. His point is that Sotomayor is upholding the status quo. That is not the definition of a "non Judicial Activist". Judicial Activism is activism by judges effecting our "baseline" - that is the Constitution. Support of this activism, whether one year later or 4 decades later (R v W for instance) is still Judicial Activism. As always, the left weasel words its way out of a true discussion. Does that make sense?
He defends her as a status quo judge due to her support of discrimination laws which we feel are not part of the Constitution and should be eliminated someday to avoid the reverse discrimination that happens (remember MLK's goals which are obviously lost by the left!) - that is what Ricci was about. So she is a status quo judge when there is no "time" in your thinking. If you are an "originalist" and analyze based on 220 years or so, she is a Judicial Activist.
As always, since we cannot agree on the language, the discussion - and persuasion is difficult if not impossible.
I referred to Rove because of the timeliness of the article and the stating of the obvious - see my above argument to understand why it is obvious!
Although I have not reviewed any of her cases in detail, I have read enough to know she is a Judicial Activist and BHO picked her for that reason ("Empathy" is so clearly a code for "Judicial Activism" - though you won't see it - that this is clear.)
And finally, she has had 3 of the 5 decisions in which she participated and ended up with the Supreme Court reversed. If you believe the Supreme Court is upholding our Constitution, and I believe they do - both lefties and righties in most instances - then she is either an inept Judge - and I don't believe that - or she is a Judicial Activist.
Is there another answer?
You wrote:
"He defends her as a status quo judge due to her support of discrimination laws which we feel are not part of the Constitution and should be eliminated someday to avoid the reverse discrimination that happens (remember MLK's goals which are obviously lost by the left!) - that is what Ricci was about."
Let's say we agree that these discrimination laws should not exist - is it the lower level judge's job to tear down those laws? I don't think so. I think the judge has to go by the laws that are on the books. I think we've talked about this before, but don't we want the laws to be put in place by the legislature, as our representatives? A judge may personally feel that a law is unconstitutional, but that does not mean they're at liberty to throw out the law. In that sense most judges must support the status quo.
The vast majority of laws are not 'in the Constitution' - the tough job of the Supreme Court is to decide whether some of those laws that are challenged really fit within the framework that the Constitution establishes. But most judges have to work within the framework of the laws that are in place at that time.
I think the Prop 8 case in California is an interesting case study. The proposition was approved by voters. The court has said that the amendment stands (1 dissenter. Which side is 'activist'?). This seems to be leading to a new round of public activism that may lead to a new proposition to attempt reverse the initial one. Regardless of the outcome, it seems right to me to have the people get involved in trying to get set the legal outcome. That's a better path than having the judges decide, I think.
The details of cases like Ricci are too difficult to discuss and resolve. Seems to me that in Ricci the city set up a screen, didn't like the results (I am aware of no specific law from the legislature that forced them to not like the results), changed them and then Sotomayor agreed that the city should change them (in my opinion for ideological reasons). That is Judicial Activism in my book.
We will see what the Supremes say about it and her next month.
I agree completely with you on Prop 8. The people spoke, and the CA Supremes - save 1 - judged that correctly based on CA Constitution.
My question is how did the judicial system divine Gay Marriage in the first place. They created it out of whole cloth. If they hadn't, the CA Supremes would not have shot it down.
Do you think Sotomayor is an Activist Judge, at least by my definition? If you do, then I will try to get you to take "time" into account!
And by the way, I also disagree with your comment that if a lower court judge feels a law (or action) is unconstitutional they must allow the law (or action)if it has been put on the books by the legislature. He is bound to uphold the Constitution with his decision (remember the blindfold - I feel it even applies to precedent). That is what appeal courts/judges are for. Do you agree?
My reading of your comments is that you seem to feel that judges should disregard precedent if they feel that the current law and/or any subsequent precedents were unconstitutional.
I have never studied law, but it seems to me that this is a recipe for chaos. Now perhaps if every judge who did this had a common understanding of the intent of the constitution, then it might work, but I'd submit that is far from the reality of the situation, where there are many shades of interpretation. If every judge was at liberty to rule on the constitutionality of each law (as per their own interpretation of the 'originalist' intent, then I think you'd have no idea what to expect at any given trial. Is that a 'conservative' position? Or am I misunderstanding your intent?
I think too often people see the outcome of a decision and disagree with it and blame the judge for being biased in some way, rather than asking themselves what the law and legal situation actually is, and whether the judge interpreted the law in a rational way. If the law is seen by many to be leading to many poor outcomes, then it's the law that should be changed.
I do understand your point that a poor decision at some previous point can lead to a whole set of precedents that then tend to "lock in" that decision for a long time. I'm not quite sure what to do about that, but I think that letting every judge make their own call is not the right way to go.
Your interpretation of my comments is precisely correct! It is my belief that every judge at every level has to rule in every case based on constitutionality of the facts. I do not mean that this is his first thought in coming to a conclusion, but it must be considered at some point. You must have a baseline and judges must follow it!
"I have never studied law, but it seems to me that this is a recipe for chaos."
What do you think we have in our legal system today? I would say it has been in "chaos" for the last 50 years! Going back to questions of constitutionality instead of "feelings" would reduce the chaos, not increase it!
I am vacationing in Terre Haute with Sue this week so may not respond as quickly as normal - I seem to have more time when I work!
This is an interesting conversation and I would like to pursue it. If we don't all understand our Constitution and agree on how it should be used - not total agreement, but intelligent disagreement as you often see in the Supremes decisions (it always cracks me up how Scalia and Ginsburg are best of friends, when their philosphies are like oil and water!)
My question to you is: if a judge thinks a fact is unconstituional, how does he justify a decision to override the constitution? How does he take his oath of office? These seem like questions the left has left at the door!
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