[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Sign-in] [Mail] [Setup] [Help]
Status: Not Logged In; Sign In
|
Dead Constitution See other Dead Constitution Articles Title: Rule of Law, or Rule of Lawyers?Sotomayor claims an unlimited license for judicial activism. It’s not the rule of law, it’s the rule of lawyers: That’s the central message conveyed by Pres. Barack Obama’s nomination of Sonia Sotomayor, a judge of the Second Circuit federal appeals court, to replace retiring Justice David Souter on the U.S. Supreme Court next October. Obama and the lawyers in his administration are fond of invoking the rule of law. Yet that golden standard stands on the conceit, honored more in the breach than in the observance, that “we are a nation of laws, not of men.” It holds that there is an objective corpus of law — of the community’s reasoned consensus, shorn of passion, fear, or favor — under which we’ve agreed to be governed and to which those chosen to represent us owe their fidelity. It’s a nice ideal. Increasingly, though, our real governing standard is the one made infamous by the legendary litigator Roy Cohn: “Don’t tell me what the law is. Tell me who the judge is.” Our ideal of judging was perhaps best explained by John Roberts during his 2005 confirmation hearings. The judge is like an umpire, Roberts mused. The umpire calls balls and strikes; he doesn’t design or alter the rules of the game. That’s how it’s supposed to work. The judge’s courtroom is the level playing field where even the visiting team can win if the law — the objective law — is on its side. Sure, the crowd and the local paper will root, root, root for the home team. The rules, however, don’t have a rooting interest. Justice is blind. The umpire is there to see that justice is done — not manufactured. The president doesn’t view the world that way. He wants the umpire to pick winners and losers, not simply to preside over a fair fight — “fair,” in this context, meaning a fight under rules agreed upon before the game gets started. Thus, in a 2001 interview that gained some notoriety but not much mainstream analysis, Obama faulted the Warren Court for not being radical enough. It failed, as he saw it, to “break free from the essential constraints that were placed by the Founding Fathers in the Constitution.” Instead of clinging to the traditional interpretation of our founding law as “a charter of negative liberties” that says only what government “can’t do to you,” the judges should have remade the Constitution to reflect what government “must do on your behalf.” Therein lies the problem. In point of fact, the Constitution does state a few important things government must do on our behalf. But they are things like providing for the common defense — things it must do for everyone equally, just as the “negative liberties” are things it mustn’t do to anyone equally, like suppress political speech or conduct unreasonable searches. But President Obama sees government not as guarantor of freedom but as caretaker, providing certain guaranteed outcomes (a “fair” wage, a “decent” home, “adequate” health care, etc.) regardless of how industrious and responsible his charges seem to be. That isn’t American law, because American law, at its core, is about equal protection — equal treatment before the bar of justice. Uncle Sam is not a rich relation. He’s an empty vessel, filled only by what Americans pay in. He can’t give to one without taking from the other. And if the other doesn’t want to give, Uncle Sam has to press his thumb on the scales of justice. That is not the rule of law, it is the rule of lawyers. It is the claim that something extraneous to the law, to the antecedent rules we all agree to live by, should be dispositive in a given case. And that something is the lawyer-turned-judge’s subjective sense of right and wrong, of fairness stemming from the judge’s unique life experience. The president euphemistically calls this “empathy,” but it is nothing more than the lawyer unconstrained by the law. And the lawyer unconstrained by the law is the umpire unconstrained by the rules — which is to say, she is no umpire at all. She is a fan, a part of the crowd, subject to all the crowd’s biases, boosterism, and irrationality. That these traits come wrapped in a law degree does not make them more attractive. When they come wearing a robe, they can be monstrous. Judge Sotomayor is unabashed in claiming license to judge, and, indeed, to make law, in accordance with her feelings and her politics, which are decidedly leftist. For her, the nation’s appellate courts are the places “where policy is made” by judges, not the places where policy already made by the public is applied by judges. And as she proclaimed in a 2002 speech, legal decisions by judges of her background should be affected by their “experiences as women and people of color.” She insisted, in fact, that “a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.” A truly wise judge would know the rule of law doesn’t change depending on whether it’s being read by a Latina woman or by a white male — but the rule of lawyers does.
Post Comment Private Reply Ignore Thread
|
||
|
[Home]
[Headlines]
[Latest Articles]
[Latest Comments]
[Post]
[Sign-in]
[Mail]
[Setup]
[Help]
|
||