I don't intend to get deep into the specifics of Obama's nomination of Sonia Sotomayor for the Supreme Court, her professional standing, or the confirmation process that now begins. The real issues there are complex and involve an assessment of her judicial qualifications and legal background that is beyond my ken (though broadly I'd say her background in the judicial system suggests she's fully qualified; if not, two past Presidents have screwed up badly).
On the other hand, a large part of the Court nomination and confirmation process these days is pure political theater - as stylized as kabuki - in which each player (President, nominee, President's party, opposition party) takes a predictable role and says prescribed, predictable things. I do think it's useful to try to separate the issues that really matter from some of the drivel that forms a part of the kabuki script.
One such non-issue is the opinion, commonly heard these days, that a Justice must not apply his or her "life experience" to judicial decisions. That, we are told, constitutes "legislating from the bench" or "judicial activism." But this line of argument is nonsensical. Legislating from the bench is exactly what our system asks our courts, particularly our Supreme Court, to do. Legislators write laws, but since the early days of the Republic, we have left to the Court, through judicial review, the final say on whether a law is "Constitutional," or whether in specific cases some party's constitutional rights have been infringed. That's the Court's role in check-and-balance.
Granted, the Court shouldn't originate legislation on an issue, but once the Congress has done so - often in a poorly worded or unclear way - the job of any judge, from Chief Justice Roberts to Judge Judy, is to figure out how to apply it in cases of dispute. Interpretation is needed to determine what the law means; to determine whether the facts of the case fall within the definition of the law; and to reach a conclusion about how law and facts mesh and overlap.
We do expect Justices to try to be objective in this process, and to exercise restraint in their personal views (Roberts likened it to being an "umpire"); and certainly Sotomayor may be challenged on that score. But if we're honest with ourselves, I don't think any of us would claim this interpreting function can be done in some ethereal vacuum where Justices' personal experiences won't inform their thinking. It's not humanly possible. (Even if it were, we don't need vacuum-heads on the Court.) To argue otherwise is to suggest that if two, or even nine, different justices look at the same case, they would never disagree. How often has that occurred? In short, the whole business about "legislating from the bench" (a purposely deceptive term coined by certain political groups) is baseless and bogus; those who invoke it are uncomfortable only when the "legislation" is something they don't agree with.
Yesterday, when the Sotomayor nomination was announced, a few critics were already extending the concept of the "pure" law to suggest that diversity or representativeness on the Court weren't important. But if those people can be honest with themselves for a moment about what we pay our judges for (interpretation), the scales should fall from their eyes and they will see that diversity is critical to the effective, fair working of our court system, particularly in the court of last resort.
Comments