Judging The Judges

June 8, 2009 at 8:11 pm (News & Politics)

This is the full version of a column that will appear in The Gazette shortly.   The version to be published was cut down, I am told, for reasons of space:



Arthur Joel Katz

President Obama’s first nominee for the United States Supreme Court, Judge Sonia Sotomayor, was accused by some dim-witted Republicans of being a racist.    In a speech in 2001, she 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.”   The statement is absolutely correct and shows no racism whatever.

If Judge Sotomayor had said that a wise Latina would often reach a better conclusion than a white male, perhaps this ridiculous charge might have stuck.  But that is NOT what she said.    She made the distinction life experience.   She had been brought up in a public housing project in the Bronx.  She was comparing that experience to that of a white male “who hasn’t lived that life.”   Her point was that life experience does make a difference.   That view was expounded by   Clarence Thomas and Samuel Alito, both highly conservative, during their confirmation hearings.   Each testified extensively as to their backgrounds and argued that their backgrounds would influence their judging.

The notion that the best judges are those who more or less mechanically interpret the law, as if law was a series of mathematical equations that could be worked out by anyone who could read the symbols, is a myth.

The point is illustrated in a book of mock decisions of the British High Court called The Common Law, written by the British humorist A. P. Herbert.  Herbert “reported” as a case in which the plaintiff claimed he had been libeled by the Defendant who had taught his parrot to say terrible untrue things about the Plaintiff.  The Defendant claimed that it didn’t matter what the parrot said because it was all oral.  In Britain (and in most U.S. States) something said is slander, not libel, and slander requires the showing of damages to bring a suit.  The Plaintiff argued, however, that the whole idea of requiring writing in a libel case was that it had a certain permanence, and the parrot was still alive thereby providing the requisite permanence.

The case was heard by a three judge panel.  The first judge began his opinion, which in the British custom, was read from the bench, “The law is clear . . .” and held for the Plaintiff.  The second judge also began with “The law is clear . . .” and held for the Defendant.   The third judge also said “The law is clear. . .” but dropped dead before he could state which way he decided.

As the great Supreme Court Justice Oliver Wendell Holmes, Jr. said, “The life of the law has not been logic; it has been experience.”    The mechanical view is today argued people who do not understand—-and for the most part don’t care—-what the Constitution means by what it says.   They want every Supreme Court decision to come out their way no matter what the constitution says or the cost of their interpretation.

Take the abortion issue, for example.     In the famous case of Roe v. Wade, the Court did not legalize abortion; it simply held that under the Fourteenth Amendment that right of a woman to control whether she has a child or not is a civil right that a state or the federal government cannot deny.  It should surprise no one that the Court found a right like abortion to be protected by the Constitution.   It, like the Right of Privacy which, presumably, protects us from the government snooping in our bedrooms, among other things, was found by the court to also be protected.

Neither abortion nor the Right of Privacy is specifically mentioned in the constitution.    However, the Fourteenth Amendment does specifically provide,” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens . . ., nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”  The Court found the right to an abortion and the Right of Privacy to fall under the definitions of this Amendment.  It also found that the Tenth Amendment, which reserves to the people their rights even though not enumerated in the Constitution, also applies.

Did the background of the judges lead to those decisions?  Almost certainly.  How could those rights not listed in the Constitution be found to have been retained by the people unless the judges who found them had actually lived among “the people” and understood public attitudes?

The civil rights movement is clearly a beneficiary of the notion that judges are influenced by their life experiences.    In 1896, the Supreme Court decided Plessey v. Ferguson, which held that “separate but equal” facilities could be used to segregate blacks from whites.  Although that case applied to railroad accommodations, it became the protector of inferior education offered blacks in segregated schools.  The decision, by a 7-1 majority,  came at a time when the Court had not had a single black man (or for that matter, a woman) sat as a judge in its whole history.  Obviously, a court made up of all white male judges, in 1896, could be expected to have little sensitivity with the  plight of black people who  were then still generally  considered to  be part of an inferior race, even in the North.

Then, in 1954, the Court unanimously decided in Brown v. Board of Education that “separate educational facilities are inherently unequal” and, accordingly, segregation in schools, and essentially elsewhere, ran afoul of the equal protection of the laws protection provided by the Fourteenth Amendment.  The nine judges who decided that case had lived through an era in which equality of all races was increasingly seen as an important value.   What had changed from 1896 to 1954 was not the wording of the Constitution, but the life experiences of the judges.

Finally, the answer to “strict constructionists” is provided by the most famous of our Chief Justices, John Marshall, whose decision in the case of Marbury v. Madison held that the Supreme Court had the right to find unconstitutional the actions of the congress or the President.    There is no provision in the Constitution that gives the Court any such right, a fact which evens a “strict constructionist” acknowledged.  As he put it—-either Justice Alito or Justice Scalia, but I forget which—the Supreme Court simply “stole” the right.

Bravo to President Obama for appointing Judge Sonia Sotomayor.   She is a brilliant woman with 17 years of experience in the Federal Judiciary.   She is full suited to take a seat on the Court as any Justice now sitting.    The fact that she is Hispanic may provide the Court with the kind of diversity it needs.  And if the Republicans know what they are doing, they’ll stop their nonsense and get her confirmation done without delay.

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