Sonia Sotomayor -- Cutting to the Supreme Court Chase

The hearings on the Supreme Court nomination of Sonia Sotomayor have been depressingly familiar in certain respects, even if the outcome is predictable. The whole spectacle is reminiscent of hearings past and prefigures those still to come as a blend of grandstanding, stonewalling, and humbug.

 The problem goes beyond the formulaic pretensions of the parties involved. It has more to do with the nature of the Court and of judging at the highest level.

 Senators are obliged to support qualified nominees – if they feel like it. (Never mind exactly what “qualified” means; but Clarence Thomas isn’t.) It is a subjective, essentially political decision about a nominee’s fitness to serve and their compatibility with one’s own principles or “biases.” But it isn’t random, capricious, or unimportant.

 When a nominee is patently qualified, in terms of intelligence, experience, demeanor, and that ephemeral combination of wisdom with deeply-held but not self-blinding values, it should make the process easier, not harder. Yet Republican senators have struggled to find a way to derail this nomination. (Do they suppose that if the Sotomayor nomination failed, Robert Bork would be named in her place? Or are they simply gaming the system?) We’re probably two vacancies away from a nomination that could swing the Court to the left. Then we’ll see the real fireworks.

 Meanwhile, there’s a bad idea going around, mostly on the right but sometimes given tacit support from the left: that good nominees should be neutral umpires of the law with no discernible views or values: that they must simply apply the law. It’s dangerous nonsense.

 Judges at all levels must try to uphold received standards of fairness and neutrality (not objectivity, unless they are doing math, deductive logic, or reciting closing stock prices or baseball scores; everything else is messy.) Justices must apply the law – or revise it. And even simply “applying the law” involves a lot of interpretation, hence the written decisions of the High Court. Interpretation leaves room for – guess what? – interpretive latitude.

 Judges must respect the power of precedents (stare decisis, as the doctrine is called in legal circles: “To stand by what has been decided.”) But they cannot do so slavishly. Precedent cannot always prevail, or we would never have had the Civil War amendments or Brown v. Topeka Board of Education, and we would still be governed by the egregious separate-but-equal principle affirmed by Plessy v. Ferguson in 1896.

 As our culture evolves, so does the law. In the short run, we must adapt our needs to the law; in the longer run, vice versa. The law must always trail, govern, and adapt to society’s needs at once. That’s why we have elections, judicial review, and public debates about the law. Democracies, by definition, change – in theory deliberately and fairly through due process.

 Our Constitution was designed for an 18th century agrarian-mercantile society, and has held up pretty well into the 21st century, with a few amendments, mischievous and otherwise. But there have always been stress fractures and voids; some of the Framers may have been geniuses, but all were mortals.

 The document began with a truly Faustian bargain – the odious “three-fifths of a person” clause, which gave southern states additional electoral clout for their slave population in order to bring them into the Union. We sorted that problem out with a bloody self-inflicted national holocaust that was not exactly a triumph in the career of our founding document.

 Of course justices should never rule from sentiments or personal principles alone. But everyone has sentiments and principles; and one way or another, they infuse almost every corner of human thought. So it’s absurd to suggest that justices should not only to be fair and neutral in interpreting the law but should also be objective automata.

 How we view the law, as a blueprint of freedom and equality, a map of our rights, and a codification of social standards and mores, affects how we interpret it. Our ideas, principles and worldviews dictate whether we have an expansive or constrictive view of legal interpretation – and inferentially, of state power, individual human agency, and many other things.

 If this were not so, and judging could be done free of any ideological bias or predisposition, there would be no daylight between a Justice Breyer (for example) and a Justice Scalia or Thomas; and there manifestly is. Those differences are real, significant, enduring, and morally and intellectually valid.

 So let’s have done with the pretense that a prospective justice must be some kind of cipher, and focus instead on eliciting more candor from High Court nominees instead of allowing (or forcing) them to stonewall on significant issues. The present climate of Supreme Court hearings is fouled by wrongheaded assumptions. It degrades or democracy to pass these bad assumptions on to our children and to future Supreme Court nominees.

Originally posted on…reme-court-chase/ ‎