Judging Sotomayor?

[unixronin]

Much has been written, on both sides, about the nomination of Sonia Sotomayor to the United States Supreme Court. President Obama has repeatedly said that he feels the Supreme Court needs her “empathy”. Sotomayor herself has said on many occasions that “a wise Latina woman [...] would more often than not reach a better conclusion than a white male” when it comes to judging the law.

I have grave reservations about this nomination, and a few minutes ago, I realized how to distil out the central essence of why.

You see, the United States is a Constitutional republic, a nation of law, and the duty of the United States Supreme Court is to be the final judge and arbiter of the nations laws and their rectitude. It is the duty of the Supreme Court’s Justices to make their judgements as fairly, as correctly, and as objectively as they possibly can. Their responsibility is not to judge the ethnic sensitivity of the plaintiff or the hardships faced by the defendant; it is to judge the fairness, the correctness, and the Constitutional soundness of the applicable law itself. If the Supreme Court cannot be objective, it cannot properly discharge its duties and responsibilities.

Yet, our President is nominating to the United States Supreme Court a woman whose strongest and most vital qualification for the position — or so he tells us — is precisely that she is not objective.

Does anyone else see a problem with this?

Comments

[bikergeek.livejournal.com]

One problem is that truly objective evaluation of the law in a vacuum leads to things like the Dred Scott decision, and to the recent decision in California upholding Proposition 8 as a legitimate change to the state constitution enacted by popular vote. The fact remains that the decisions of any court affect real people, and the effect of such a decision on all parties to the case, and on subsequent parties who may be party to similar cases, has to be taken into account. On the other hand, "I have a preconceived notion of what I want and I'm going to torture the law until I find a legal theory and precedent to support it" is a poor way to judge cases as well. Which has happened as well in the history of the Supreme Court.

[unixronin.livejournal.com]

Much though I dislike (also detest, and despise) Proposition 8, after having read the key passages of the California Supreme Court's decision, I have to agree that they were right to rule as they did. Proposition 8 is mean-spirited, selfish and divisive, and I have the impression the Court themselves didn't much like it either, but the law and the details of the suit being what they were, realistically they could not defensibly rule any other way.


Actually, now that I think about it, there's an interesting parallel here. Sotomayor has been criticized as racist in light of Ricci v. Stefani, the New Haven, CT firefighter promotion case in which the city decided not to promote anyone because no black candidates passed the written examination, and the nineteen candidates who did pass, eighteen white and one Hispanic, sued the city on the grounds that the decision not to promote anyone at all because they couldn't promote any black firefighters was race discrimination. Second Circuit found in favor of the city, and the case will probably go to SCOTUS, but the interesting aspect from the point of view of Prop. 8 is that Sotomayor and four other justices wrote an opinion in which they stated that precedent basically did not allow them to rule any other way.

[lonewolf545.livejournal.com]

Dred Scott as an example of objective evaluation? The Justices in that case admitted that ruling that free blacks were citizens was anathema because to do so would afford them all of the rights and privileges free whites enjoyed, and letting blacks travel freely, associate with whom they chose, and to buy and carry guns without permit or pass just would not do.

Unixronin has already pointed out that under the actual law, Proposition 8 had to be upheld because it was passed in the appropriate manner under the state Constitution. Any judge who had ruled against it would have been in violation of their oath of office and worthy of impeachment. That California's Constitution is easily manipulated and Proposition 8 is likely a bad idea are different issues, which the courts can not and SHOULD not decide.

[ilcylic.livejournal.com]

But it's not the answer I wanted! *whines*

[jordan179.livejournal.com]

One problem is that truly objective evaluation of the law in a vacuum leads to things like the Dred Scott decision, ...

That's doubtful, and hinges on the assumption that the US Constitution originally defined blacks as nonhuman. This was Taney's working assumption, but it is not supported by the actual document. In fact you could argue that Dred Scott was an early example of an "activist judiciary" -- and coming from the same Party who supports the concept today, albiet for different ends.

... and to the recent decision in California upholding Proposition 8 as a legitimate change to the state constitution enacted by popular vote.

Of course it was "a legitimate change to the State Constitution enacted by popular vote."

A very bad idea, if you ask me, but still "legitimate." Are you saying that the California State Supreme Court should be empowered to rewrite the State Contitution by fiat? Will you still be cool with this idea when they abolish or override parts of the State Constitution with which you are sympathetic?

[fruitylips.livejournal.com]

This is largely the problem that they're looking to solve with the 'empathy' argument.

You're exactly right. It is not the job of the judiciary to decide if a policy is a good idea or not. It is their job to decide if it is legal or not. We already have two branches of the government who are tasked with deciding whether or not a policy is a good idea. (and in CA, throw The People into that group...)

It isn't the CA Supreme Court's job to decide if it is a good idea to amend the CA Constitution to prohibit gay marriage, so they didn't address the issue. They only ruled that it was legal to amend the constitution to prohibit gay marriage.

[msa.livejournal.com]

Prop 8 is a bad example...

While the text may be wrong, I can't really fault the CA supremes for refusing to override the will of the voters, in the absence of any law allowing them to do so and given the precedent (their own) in place.

If they'd done the "right thing," the prop-8 backers would have immediately sued and likely won, which is a set back. The court must, after all, uphold the state constitution. Any court would not be very willing to override the popular vote, even if the voters are wrong.

Ruling the way they did, especially by letting the existing marriages stand (creating another class of "equal but not") strengthens the obvious EP challenges. I think that was deliberate -- they clearly indicate where their sympathies lie (given their previous EP ruling, and comments in this decision.)

The CA supremes correctly noted that other states don't allow their initiative process to be used to amend portions of their constitution pertaining to civil rights.

It is clear that the CA constitution is defective by permitting this...and while they're at it, it seems the bar either has to be raised on all initiatives, or they have to raise it for bond initiatives specifically, to keep the voters from repeatedly spending the state into bankruptcy.

I've said it before and I'll say it again...CA needs a constitutional convention to rip out 90% of the bs and fix these obvious defects.