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Tuesday, May 26, 2009

According to the GOP, Judges Aren't Supposed to Make Decisions

Barack Obama gets a to make a Supreme Court nomination pretty much right off the bat and it turns out that a lot of early speculation was right.

Associated Press:

Sonia SotomayorU.S. President Barack Obama tapped U.S. Circuit Judge Sonia Sotomayor for the Supreme Court on Tuesday, officials said, making her the first Hispanic in history picked to wear the robes of a justice.

If confirmed by the Senate, Sotomayor, 54, would succeed retiring Justice David Souter. Two officials described Obama's decision on condition of anonymity because no formal announcement had been made.

Administration officials say Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.


First nominated to the Federal bench by George HW Bush in 1991 and elevated to the US Court of Appeals for the Second Circuit in 1997, Sotomayor should have support from both sides of the aisle. But these aren't typical times and the loyal opposition isn't exactly rational these days. Obama could nominate anyone at all -- even an identical twin to Samuel Alito or Clarence Thomas -- and the GOP would oppose the nomination as too liberal. See, it comes from Barack Obama, who's supposed to be the most liberal president ever, so any judge he nominates will logically be a terr'ist sympathizer and a commie.

Never mind that Obama's not the most liberal president ever -- Teddy Roosevelt and Abraham Lincoln are two Republican presidents I can think of who were more liberal than Obama -- and never mind that Sotomayor was originally nominated by Bush the elder. Sonia Sotomayor is the most liberal judge any president has ever nominated to the Supreme Court. At least, that'll be the predictable spin coming from the right.

Trust me. It's going to get stupid.





Before Obama's SCOTUS pick even had a name, the ideological guns were loaded and ready to fire. President Obama said he'd nominate a judge with empathy and the Republican party took that as a threat. Judges shouldn't be empathic, they said. They should be freakin' robots. They should read the law as written and generate a ruling with the same lack of compassion that computer generates a report. Looking for something -- anything -- to get in a fight over and (hopefully) score political points, the right glommed onto the word "empathy." That word is supposedly code for "activist judge."

Associated Press:

Empathy isn’t part of the job description for a Supreme Court justice, a top Republican says.

As President Barack Obama prepares to name his pick for the high court, the Senate’s No. 2 Republican said the qualifications being discussed — "emotions or feelings or preconceived ideas," Sen. Jon Kyl called them — aren’t enough to justify a lifetime appointment. The Arizona Republican on Sunday wouldn’t rule out a filibuster to block an Obama pick that falls outside his definition of the mainstream.

"We will distinguish between a liberal judge on one side and one who doesn’t decide cases on the merits but, rather, on the basis of his or her preconceived ideas," Kyl said.


Leaving aside the hypocrisy of a Republican filibuster of a Supreme Court nominee, this line of reasoning is poorly constructed. In fact, this entire idea the right has of "activist judges" is based on a really stupid pretense -- that judges don't actually make any decisions.

It works this way; the law is written and, surprisingly for a human endeavor, it's complete and all-encompassing. There is no situation the law wouldn't cover. In every situation and in every case, the law is clear and well-thought out, because it was written by elected officials -- who are faultless human beings notable for their perfection. As they do with many things, Republicans believe this with all their little hearts -- until they don't. Let someone suggest government handle our health care, for example, and suddenly people in Washington are barely functioning mental invalids who survive without the aid of constant supervision only by a miracle. But in matters legal, they are flawless -- so long as they're Republican.

So, elected representatives being the perfect lawmakers that they are, the founders in their wisdom decided to set up the courts to support that idea. Presidents would search out the nation's greatest legal minds, either from the courts or the classrooms, set them up in big columned buildings that look like a cross between a temple and a wedding cake, dress them up in robes, treat them with the utmost respect and dignity, and use them a legal librarians -- because, of course, the law is absolutely flawless.

Never mind that any first year law student could do the job that Republicans pretend judges do, this is what they want you to believe is the purpose of the courts. Someone makes an argument, you look it up in your rulebook, and see what it says. Then you come back and tell them what the book says. In fact, you don't even need a law student to do that, all you need is a database. Still, we need this nation's greatest legal thinkers to pull off this feat of astounding simplicity. Why? I guess because only geniuses of jurisprudence are capable of looking up things up in a book of law. Or maybe only they are able to grasp the shining perfection of the work of elected officials.

Anything other than a glorified law librarian is an "activist judge." Someone who approaches the law even considering that it might be unconstitutional is a "judicial activist." The legislatures write law and the judiciary stamps it official without question. It's the job of the legislative to write law, not the courts, and -- by some insane leap of logic -- invalidating law is "legislating from the bench."

None of this has to make any damned sense at all, because it's not about making sense -- it's about manufacturing a reason to oppose a judge. Republicans are overjoyed with what they would otherwise call "judicial activism" when the decision goes their way. Find a Republican who was outraged at Bush v. Gore, for example.

If there's any code here, it's in words "activist judge," not in the word "empathy." "Activist judge" just means "liberal" or "Democrat," not what they say it means. Because the reasoning behind what they say it means rest on a really stupid argument -- that all judges are just glorified law librarians.

-Wisco


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1 comment:

M said...

During The C.J. John Roberts confirmation hearings in 2005, the criteria outlined on page six of the letter sent to then Sen. Judiciary Chairman, Arlen Spector, by the Review From The Non-Partisan Committee of the American Bar Association under "Temperament" read as follows:

"The Standing Committee considers the nominee’s compassion, decisiveness, open-mindedness, judicial courtesy, patience, freedom from bias and commitment to equal justice under the law."

(Rolling eyes)

But everyone knows the American Bar Association is a Liberal leftist/activist organization, so....

Bring on the buttery wingnuttery!