I had just started writing this piece when a friend on mine asked if it were not redundant in light of my previously released piece, "His-PANIC" which addressed some of the concerns about the nomination of Judge Sonya Sotomayor to replace retiring Justice David Souter as an Associate Justice in the Supreme Court of the United States. I replied that while there were similarities, the previous piece, "His-PANIC" dealt with the racial factors inherent in the nomination and how both Republican and Democratic senators should handle the confirmation hearings about this nominee. With this article, I'm addressing the role of judges and justices in general in the interpretation and enforcement of laws that make the framework for the rule of law that is so essential to the structure and foundation of our democratic republic.
In the interest of full and fair disclosure, and because some of what follows will come across as being somewhat esoteric, let me preface the following by saying that I come by my knowlege of legal and judical practice and procedure very honestly. In addition to having a bachelors degree with a pre-law concentration, I also have the benefit of over ten years of experience working as a litigation paralegal. Additionally, I had the benefit of having as a mentor, a close family member who served as a Circuit/Superior Court Judge for more than thirty years. I also had the pleasure of cultivating personal friendships wtih judges of both the elected and appointed varieties as a result of my political activities over the years. Accordingly, my opinion on these subjects is more than the average layman's opinion.
Like most of the country, I first heard the name Sonya Sotomayor when she was first floated as a potential nominee to replace retiring Supreme Court Justice David Souter. When I first saw a photograph of her, I knew that identity politics were in play. I also knew that she would have a compellling story, and that she would he a highly qualified jurist, because the democrats are all about the rule of law, or more to the point, the MANIPULATION of the law to suit their political ideology. Democrats have been using the court system for DECADES to force laws and policies on this country our legislators (and the VOTERS who elect them) never intended. Republicans have joined in this practice more recently. By packing courts with "ringer" judges that will rule in accordance with the wishes of politicians, but enable them to avoid political liablity for these acts, the politicians are using the judiciary as "unelected legistlators," a role for which the judiciary was NEVER envisioned or intended by our Founding Fathers as set out in the U.S. or State Constitutions
The Supreme Court was established in Article III of the United States Constitution. Article III, Section II defines the juridiction of the Supreme Court and provides a framework for the kinds of cases the Court may hear and determine. The Court first asserted its jurisdiction in the landmark case of Marbury v. Madison, which established the precedent for judicial review of laws passed by the Congress and their compliance with the Constitution. The whole rationale for the Supreme Court was that the framers of the Constitution understood that an elected President and Congress could collude to pass laws that would enfringe on the rights and liberties of the citizens, and could become every bit as tyrannical as the British King Geroge we had just sent packing. They also understood that elected legislators and Presidents would be beholden to their electorates, and the whims and caprices of the passions of the moment, because they were all about getting elected and re-elected. Politicians, therefore, must sometimes subordinate their better judgment to satisfy the demands of voters, who sometimes do NOT think about the long term effect of their acting on their momentary passions.
Every elected politician and government appointee from the President down to the newest enlistees in the armed forces takes an oath the "support, protect, and defend the Constitution of the United States" prior to their entry into office or commencing their service. Sadly for us, some of them shed that oath the second they enter their offices and start promoting their social ideologies and political agendas which are sometimes CONTRARY to that very oath. When this occurs, it is to the judicial branch that We the People must look to preserve our rights and liberties. The framers of the Constitution understood this, foresaw it, and for this reason, built the judiciary to be free of the caprices of contemporary politics. Accordingly, once appointed, a federal judge or supreme court justice can serve for the remainder of his life, or as long as he or she so desires and cannot be removed unless they are impeached by the house and found guilty in the senate of serious criminal wrongdoing. This is NEVER happened to an associate justice of the Supreme Court and very RARELY happened to any members of the federal judicial branch. The most recent example I can think of is the case of Federal District Court Judge Alcee Hastings, who is now a serving member of the House of Representatives.
Though the office of a Federal District or Appellate Court Judge or Supreme Court Justice is not a political one, per se, candidates must be nominated and confirmed by elected politicians. These politicians look for judges and justicies that are sympathetic to their political and social ideologoes and agendas because they look to the courts to provide cover and in some cases to take on the role of legislators to protect the politicians from the wrath of the voters when laws may be unpopular with their constituents, but nonetheless support the politicians political or social ideological beliefs.
There are two kinds of judges or justices one can expect to see on the bench. The ones that read into the Constitution and legislation what they choose to support their own political or social beliefs are colloquially referred to as "activist" or "liberal" judges or "legislators from the bench." The other kind of judge or justice is the one that actually reads the Constitution or the law for what it says in black and white and doesn't attempt to read "into" it, his or her own personal politcs or ideas of "social justice" or "empathy." These are referred to as "strict constructionists" or sometimes "conservative" judges or justices. Sadly, there are far more of the former, than the latter sitting on our courts today. At a time when our rights to property, and even life itself, have never been more precarious due to the behavior of an elected President and Congress who have abandoned their oaths of office the second their hands came off the Bible, We the People have never been more dependent on a judiciary that actually FOLLOWS the Constitution as the framers wrote it and intended it. We are faced with government tyranny and corruption as never before and the stakes have never been higher.
In the weeks leading up to the senate's judiciary committee hearings, I did extensive research on the more recent rulings of the Hon. Sonya Sotommayoras well as some of her earlier decisions on the district court bench. I reviewed my research with friends in the legal profession, as well as active jurists and found that her rulings are both fair, and supported by statutory and case law precendents. Her judicial record is both impressive, and conservative though I would stop short of actually calling her a "strict constructionist." Likewise, I do not consider her remarks made at hispanic organizational meetings to rise to the level of indemic racism, and further consider attempts by politcians and political pundits to brand her as a racist on par with David Duke of the KKK, to be neither warranted nor accurate. I was particularly offended by a photoshopped representation of her in Grand Dragon's robes. I guess the election of our first black president hasn't moved us to that post-racial nirvana we were led to believe it would.
A very wise man, a career jurist, and my childhood mentor once told me that I should refrain from drawing a conclusion or making a judgment until it was absolutely necessary to do so. He went on to say that when it WAS necessary, that I should only make my judgment with the evidence of my own eyes and ears and not to rely on the reporting of others. If the past election cycle coverage has taught me anything, it is NOT to trust any so-called journlist for a fair and objective reporting on any political or social issue ever again. To that end, I did my own research and reading of Judge Sotomayor's judicial opinons, discussing them only with men and women more qualified than I to analyze them. I also sat through every agonizing second of the dog and pony show that passed for the Senate Judiciary Committee hearings on CSPAN so as to avoid the spin applied by reporters and political pundits alike. Despite numerous temptations to change the channel or pop in a DVD, I watched virtually every second of the speeches, the questions, and most importantly the ANSWERS to make my own independent evaluation of Judge Sonya Sotomayor and her fitness to be the next Associate Justice of the United States Supreme Court.
When all was said and done, I arrived at two distinct, and (some might argue) disparate conclusions, or such was the consensus at my Toastmaster's Rountable group discussion earlier this week. The first conclusion was that the Hon. Sonya Sotomayhor is a very impressive woman with a personally inspirational life story, an impressive ciriculum vitae as both a lawyer and a jurist, and that she is in every way highly qualified for the office she aspires to enter. I also believe that she will, in fact, be affirmed to that position for both political and social considerations. While I don't wish to opine that she is an "affirmative action" candidate, I will not hesitate to state that her nomination is the result of the "identity politics" for which both political parties have become renowned in recent memory. Conservatives, anxious to avoid a repeat of the Robert Bork debacle, nominated Clarence Thomas to the Supreme Court believing that the Democrats would risk the support of the African-American community if they attacked him too viciously as they had Robert Bork. But for the emergence of the Anita Hill sexual harassment charge, his would have been a relatively passive and successful nomination and a political victory for conservative republicans. He did manage to get confirmed despite the best efforts of senate democrats, and I firmly believe that with Judge Sotomayor, history will repeat itself.
This, too, is the case with the nomination of Judge Sotomayor, and the Democrats have even gone so far as to verbally warn Republicans that they proceed against this nomination at their own peril, meaning they risk losing any support from the Hispanic community if they are perceived to have a bias against Judge Sotomayor for any reasons that can be deemed to be racial. When the facts fail, resort to the racism charge. In point of fact the Republicans have bent over backwards to avoid any racial component in their questioning of Judge Sotomayor, with the exception of asking her to explain her thinking when she repeatedly made her more controversial remarks as both a Federal District and Appellate Court jurist. The republican senators focused their questions and comments more appropriately on her judicial rulings, including the now infamous Ricci case which has since been reversed by the United States Supreme Court, though Judge Sotomayor relied on existing statutory and case law in sustaining the judgment of the District Court dismissing the case. We can only speculate as the whether or not she might have ruled differently if the plaintiff in "Ricci" were of Hispanic or African-American descent.
My second, and more controversial conclusion, judging by earlier reaction, is that if and when she is confirmed as an Associate Justice of the Supreme Court of the United States, Sonya Sotomayor will be every bit the liberal judicial activist that the republicans fear she will be. Now, I can hear the questions forming just as they did in my Toastmaster's roundtable when I was asked how, when conisdering her judicial record, I could conclude that she would totally change her judicial philosophy if confirmed. This is why I disclosed the fact that I had been privy to inside information from other judges. As a result of this special insight, I am aware of several fears shared by judges in general, but only TWO shared by ALL judges regardless of their jurisdiction or party affiliation.
The first universal fear shared by all the judges I know regardless of the demographic differences, is the fear of the loss of control of their courtrooms. This is a very real, visceral, fear that was illustrated and justified all too well a few years ago in Atlanta, Georgia when an escaping felon took the sidearm of a deputy sheriff and shot and killed several people in the courtroom, including the Judge. After this event, even the most liberal of judges, whose rulings had previously gone against the Second Amendment and groups like the National Rifle Association (NRA), suddenly found gun ownership to be a good thing. Many of them even started carrying their own firearms, in and out of court. There is nothing like seeing a collegue murdered to change a liberal judge's religion when it comes to firearms.
The second universal fear, and more relevant to the conclusion I reached about the Hon. Sonya Sotomayor, is the fear of having a judgment reversed by a higher court on appeal. This is the equivalent of getting your examination back in school with the dreaded red check marks. A reversal says to the judge "you got it WRONG," Reverals can have a detrimental effect on a jurist's career, esp if such reversals are frequent, and involve high profile cases with political implications. While reversals do NOT impune a judge's qualifications, they can lead a politican or layperson to conclude the judge may be less than competent. If a judge's appointment to higher office is a matter of political contention, numerous reversals can be used to justify NOT supporting the judge's nomination, as the reversals of Judge Sotomayor's rulings, including the "Ricci" case, have been used by the republican senators to challenge her qualifications for higher office.
Judges and lawyers alike have a colloquial expression for being reversed on appeal. It is called "being spanked on appeal." Unless these judges and lawyers are closet masochists, that would seem to imply that reversal is, at a minimum, an unpleaseant experience for a judge. It is for this reason, among others, that judges in lower courts tend to make their rulings conservatively to avoid the dreaded "spanking." The higher up in the chain a judge goes, the less fearful he or she is of the "spanking" consequence. Since there is no higher judicial authority in the country than the United States Supreme Court, and even if a justice's opinion is in the minority, it is not considered "wrong" and will be represented in the published opinion. Therefore, when a jurist is appointed to the Supreme Court, he or she is free to exercise his own opinons without fear of reversal or admonition, whereas as a judge in a lower court, the same jurist might tend to be more conservative in her or her rulings. For this reason alone, a judge's record on the bench is not an accurate predictor of how he or she will behave when all judicial constraints are removed and the said jurist is free to "let his or her freak flag fly,"
Ironically, this is EXACTLY what happened in the case of Justice David Souter, the man retiring from the Court creating the vacancy now being filled. Justice Souter was appointed by George H.W. Bush, a conservative republican president, who believed that he was appointing a conservative justice who would interpret the consitution literally. His vetting team concluded that then Judge David Souter was such a jurist based partly upon his judicial record, and in part upon the extensive interviews they had with the prospective nominee. Apparently Justice Souter was able to provide the team with the answers they wanted, because he got the nomination and he got confirmed. Since his confirmation, however, Justice Souter has ruled liberally more than sixty-five percent of the time, and if often referred to as one of the four liberals on the bench. Clearly, he was able to deceive the Bush vetting team, the President himself, and the senate judiciary committee to get the job, and once ensconced, was free to be himself, a liberal judicial activist.
In the Hon. Sonya Sotomayor, I see very many of the same chameleon qualities that we failed to see in then candidate Barak Obama. While her statements and answers in her confirmation hearings were well reasoned, I could tell she had been prepped very carefully and was, in fact, going to her memory to respond to questions that should have been second nature to her. Like the President, she backpedalled away from not only her record, but also a lifetime of political and social views that she had clearly heretofore embraced. This was reminiscent of the way then candidate Barak Obama threw his pastor of twenty years acquaintance, under the proverbial bus when he became a political liability. Suffice it to say, the logical conclusion is that Judge Sotomayor has been prepped by the same deceptive bunch of experts that caused us to elect a President that is NOTHING like the candidate sold to us under very FALSE pretenses. In short, I don't TRUST her and I don't know which Justice will show up to work on that First Monday in October. Will it be the one she's been all her life, the wise latina woman who will make better decisions than a white man, or the more moderate, and constitutionally faithful one she tried to convince us all she was in a week of hearings before the senate judiciary committee. One thing I am comfortable in saying is that the old expression "birds of a feather flock together" seems to be very much applicable to the present situation. I believe that President Obama would not nominate anyone that he didn't think shared his judicial and social philosophy. I believe he is intelligent enough and skilled enough as both a politician and lawyer to recognized someone who is aligned with his model of the world, and who will likely perform in the manner he expects her to. I do not think he is a man who can be easily fooled, but I also believe that his ego is such, that he may actually believe his press clippings and if that is the case, he might not be able to acknowledge the possibility that he is wrong in his assessment. Judge Sotomayor could turn out to be nothing like he thought and therefore be a pleasant surprise to those of us that want a justice who reads and applys the Constitution as written. Only time will tell.
As to how this likely appointment will affect the current makeup of the Supreme Court, there will not be an immediate impact. The current court consists of four justices that are considered liberally biased and frequently rule for the left side of an issue, four justices that are purported to be conservatives and frequently rule on the right side of an issue, and one lone justice that is referred to as the "swing voter" because he cannot be pinned with either a liberal or conservative judicial bias. Whether this is because he is the only justice who is faithfully adhering to his oath and genuinely trying to make his rulings in accordance with the Constitution, or because he is weak, and moderate in his views and can be readily persuaded by either argument. I can't say. I do not know the man well enough to speculate. I only know that at times I am very grateful for his support, and at other times I curse him for his vascillation. Isn't that always the way it goes?
With regard to judicial nominations, this round goes to the democrats. I congratulate President Obama for a very politically well reasoned and diabolical pick in the person of the Hon. Sonya Sotomayor. He found the one candidate who could actually survive the nomination process virtually unscathed, and claim a bi-partisan victory in the process. Whether you agree or disagree with his political and social philosophy, you have to give the man his due in that he is one formidable politician. Whether the credit for this goes to him or his handlers is a matter for specuation. But he did this without the aid of a teleprompter, cliffs notes, or any other crutch traditionally employed by politicians to help them make their points without making Biden-style gaffes. The republicans wisely chose to not waste their ammo against the unassailable Judge Sotomayor, but the equally, or perhaps MORE important issues of Cap n' Trade, and National Health Care Reform are battles still to be fought, and that fight may well end up before the Supreme Court of the United States where then Associate Justice Sonya Sotomayor will be able to answer our burining question "who will she be tomorrow?"
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