Sotomayor: Precedent or the U.S. Constitution?

One of the things that stood out in today's round of Supreme Court confirmation hearings was the absence of the U.S. Constitution. I watched most of the questioning, and for someone who takes an oath to uphold the constitution she hardly mentioned it. She seemed to analyze court precedent when answering questions instead of explaining what the constitution had to say about the issues. She was even asked what criterion she would use to interpret cases dealing with the 2nd ammendment and property rights, and refused to explain that. It is shocking that she is unwilling to explain how she interprets the document she is supposed to uphold.

Also if you would like to get some analysis of the first day of the confirmation hearings go here.

Sen. Sessions on the Rush to Confirm Sotomayor

Yesterday Pat Leahy the chairman of the Senate Judiciary Committee announced that the confirmation hearings for Sotomayor will be moved up. Sen. Sessions the ranking Republican on the committee immediately took to the senate floor and delivered this excellent speech about the confirmation process.

Will Lady Justice Remain Blind?

Earlier I posted how Justice Sotomayor believes the predominant factor in deciding how to decide court cases should be personal experience, instead of case law. This was based on the Sotomayor quote that surfaced saying that wise Latina woman would make better decisions than white males as a result of the richness of her experiences. When the quote surfaced, the Obama administration responded by saying it was a poor choice of words. However, it seems Justice Sotomayor has a long history of saying things like this. As part of the files she gave the Judiciary Committee, there are a number of speeches which indicate that she has a long history of making these comments. She has a regular pattern of saying that experience enables a judge to make a better decision.

The idea of blind justice and equal protection under the law are some of the oldest concepts in American jurisprudence. If judges decide cases based on their experience then justice is no longer blind. We are ripping of the blindfold and dispensing with the idea of deciding guilt or innocence based on what the law says. Instead cases will be decided based on the background you came from.

In past judicial confirmations, much of the attention has focussed on the legal background a person brings to the table. This is important because we are giving someone a lifetime appointment to decide the law(or atleast that was the idea). By nominating someone who believes cases should be decided based on experience instead of case law, we are dispensing with the idea that legal experience is important. If we continue down this path, does it even matter if a supreme court pick attends law school? Maybe we should just find a poor oppressed minority in some homeless shelter and place them on the bench. I'm sure they have a rich experience to draw from to make decisions.

If you beleive that justice should be blind, and cases should be decided based on case law and not experience, then I hope you will contact your senator and ask them to vote against confirming Justice Sotomayor to the Supreme Court.

Two Different Views of the Judiciary

Yesterday we had two major announcements concerning the courts. One was the California Supreme Court 6-1 ruling on Proposition 8, and the other was the announcement of Sonia Sotomayor as Obama's nominee for the supreme court. These two events display two completely different views on how the judiciary should act.

The California Supreme Court ruling upheld Proposition 8 and allowed the marriages performed before Proposition 8 was adopted to stand. In the decision, the court acknowledged that it's job is to interpret the laws, not inject their own political and personal opinions into the decisions. On page 3 of the majority opinion the court lays out this principle.

In addressing the issues now presented in the third chapter of this narrative, it is important at the outset to emphasize a number of significant points. First, as explained in the Marriage Cases... our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.

In contrast President Obama's supreme court nominee seems to believe that the courts are a policy making body and that you can and should use your own personal experiences to make this policy.

"The court of appeals is where policy is made."

In a quote that is becoming more popular Sonia Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." Here we have a judge who believes judges should make policy based on their personal experiences. (This New York Times article has a number of other interesting quotes from Judge Sotomayor.)

This is distinctly different from the view offered by the California Supreme Court that the courts should just interpret the law and can not inject their personal opinions.

When John Roberts was nominated he compared being a judge to an umpire accurately calling balls and strikes. Do we want an umpire who will call balls and strikes, or one who will make up new laws on the spot. That is the choice we have in this supreme court nomination battle, and it is the distinct difference between the judicial philosophies of the Bush and Obama whitehouses.

For an excellent article comparing the Sotomayor nomination to the Miguel Estrada hearings by Mason Conservative, click here.