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May 29, 2009
Why Sotomayor's Appointment is Disgraceful (Updated 5 June)
The news outlets can barely contain their glee at the nomination of an unprincipled ideologue to the Supreme Court. Her life story is 'amazing', 'inspiring', (insert glowing adjective here).
While her story is certainly one of triumph over adversity, on a macro level, it is also the story of America. I have friends who have had a family member die suddenly while they were young (myself included), leaving the family in shambles; friends who had parents battle addictions to alcohol; other friends who had one of their parents leave whilst they were young, causing hardship. Every single one of these people have grown up and become successful (everything from marketing managers to engineers), and they are decent, fair-minded people to boot. So while I will say Sotomayor faced difficult times, I'm also saying that doesn't suddenly make her SCOTUS material, any more than the hardship my friends have experienced does. There are thousands of judges and lawyers in the United States who have as impressive, or even more impressive, legal and educational credentials; that is more germane than her 'personal story'.
We're not trying to appoint someone who is a social worker or a care-giver; we're trying to appoint a brilliant and thoughtful legal mind who is able to wade into cases that set precedent for the entire land. We need someone who is able to adjudicate cases without bias (remember, the statue of Justice is shown blindfolded for a reason), and evaluate it on its merits vis a vis the law, mainly the Constitution.
This even-handedness with regard to jurisprudence is what separates civilised countries from oppressive ones. Once law and justice are applied based on the whim of courts, there is no confidence in the legal system. It's worrisome when Sotamayor says she believes that being a Latina allows her to make better decisions, and her rulings are based on her feelings and not law.
Earlier this year, she ruled that the Second Amendment's right to bear arms did not apply to states putting restrictions on weapons, despite the 2008 SCOTUS ruling that affirmed that owning a gun is a personal right, and cannot be interfered with by the government. Her ruling is also in direct contravention to the 14th Amendment, which prohibits states from restricting rights that are guaranteed by the Federal government. Unprincipled and knee-jerk rulings like this this one is probably the reason Sotomayor has a has been reversed 60% of the time.
Sotamayor was also involved in reviewing a decision concerning the promotion of firefighters in New Haven, Connecticut. Due to a limited number of open captain and lieutenant positions, only the top 19 of the 59 firefighers who passed the promotion exams were to be promoted; 17 whites and 2 Hispanics. Because no blacks had scored among the top 19, the the board was cautioned to not certify the results; the firefighters who were likely to be promoted sued, claiming their civil rights had been violated. Sotomayor and her two colleagues upheld the lower court decision that the firefighter's rights hadn't been violated (I believe the case is now before the Supreme Court).
The firefighter tests for promotion are difficult; there was no purposeful engineering to exclude blacks from the top scores. Denying these firemen their promotions simply because you're not excited about the ethnic mix is appalling. There's talk about re-writing the test in order to elicit a different outcome, which is tantamount to changing the rules of the game mid-stride; how can anyone claim this is fair? Sotomayor and her colleagues think its perfectly fine to stack the deck in certain people's favour, however. Everyone is equal, except some are more equal than others it seems.
Even Sotomayor agrees that she sees being a judge differently than the Constitution defines the role; whereas she sees judges as creating policy, the Constitution is clear that the Executive branch does that, the legislature enacts new laws and the judicial branch evaluates cases based on the law. Judges, who are not elected on the Circuit Court level or the Supreme Court level, are not supposed to take it upon themselves to create and enforce new policy because they are not answerable to the people.
With her 'breadth of experience', Sotomayor should be a champion for equality, fairness and equal application of the law. Instead she has positioned herself as some great arbiter who doles out her version of justice based on factors such as race and sex. She is a bureaucrat on high, able to pass sentence and alter people's lives based not on a set of agreed upon rules of conduct (called laws), but on her personal preference and feelings of empathy. This is absolutely wrong and her appointment should be opposed strenuously.
As for her being a Latina, a minority, and the GOP would be stupid to oppose her, I say, what good are principles if you refuse to stand for them? Many in the GOP didn't think Harriet Meyers was a good pick and said so; Miguel Estrada was nominated by President Bush and the left tarred and feathered him, and his bona fides were better than Sotomayors. Where was the outrage for the Democrats during that go round? We need to stand for something or surely, soon, we will stand for nothing. Sotomayor is a bad pick not because she is a Latina, but because she doesn't believe in the rule of law, and therefore won't be able to uphold the oath she is compelled to take:
"I _______, do solemnly swear that I will administer justice without respect to persons and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [Supreme Court Justice] under the Constitution and laws of the United States. So help me God."
UPDATE:
Surprisingly, the liberal magazine Mother Jones is critical of Sotamoyor's writing ability and points out Scalia's far superior writing skills. An excerpt:
The court's influence and lasting legacy is what it commits to paper. Sotomayor may be a force of nature in the courtroom, where she's said to shine, but it's hard to imagine her going head to head in print with, say, Antonin Scalia. The conservative justice is the master of the wicked one-liner and, while something of a smart aleck, he influences the public debate on so many issues because of his writing—whether he's in the majority or dissenting and whether he's right or wrong. Scalia's opinions are cited in leading constitutional law casebooks more than any other sitting justice. In the 2002 case Republican Party v. White, for instance, he quipped, "campaign promises are—by long democratic tradition—the least binding form of human commitment."
But it's not just his one-liners that make Scalia's writing so influential. It's also the way he frames his arguments. Take his dissent in PGA Tour v. Martin. That's the 2001 case in which the court ruled in favor of golfer Casey Martin, who suffered from a birth defect that prevented him from walking 18 holes and who wanted to use a golf cart in professional tournament play. Scalia wrote, "If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf…then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States…to decide What Is Golf. I am sure that the Framers of the Constitution…fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a 'fundamental' aspect of golf."
and:
Her opinion in the case {Entergy Corp v. Riverkeeper] runs 80 pages; reading it might be good punishment for law students who show up late for class. Early on, she devotes nearly an entire page to quoting EPA rules that instruct power plants on how to comply with the Clean Water Act. And it takes her 2,500 words just to sum up the basis of the case. A layperson would be hard pressed to glean from the opinion that Riverkeeper is a significant environmental opinion that puts Sotomayor squarely in the green camp. She rules against power plants and in favor of preserving aquatic life at almost any cost, yet the opinion is remarkably passionless. For all President Obama's talk about appointing a justice with a sense of empathy, the Riverkeeper opinion suggests that what he appointed is a technocrat. The most quoted paragraph of Sotomayor's majority opinion is this one:
The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress's conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.
It's hardly one for the ages. While the Riverkeeper opinion itself is a drag to read, it makes for an interesting point for comparison because Scalia wrote the Supreme Court opinion overturning her. His entire opinion runs only 4,800 words, including the footnotes dissing Justice Stephen Breyer for perceived weaknesses in his dissent. Scalia's opinion is also laden with the technical language endemic to these sorts of regulatory cases, but it manages to be clear and concise and, more important, convincing, because there's actually some original writing tucked in among all the references to section 316(b) and other regulations.
I've periodically read Scalia's opinions- he is brilliant. At various points witty or a tad sarcastic, his decisions are always well thought out, footnoted, clear and interesting. Whether you agree with him or not, he is also something Sotomayor isn't: an originalist who looks to the Constitution and not the laws of foreign governments for guidance (as Ginsberg does), or allow emotion to influence his decisions.
Posted by hanyap at May 29, 2009 12:34 PM