I just spent a day watching the Sotomayer hearings on TV. I was appalled. Was this a serious consideration by a major U.S, Government body of a well-qualified appointee to the highest court in the land? Not the way I viewed it. It was kinderspiel ––a serious piece performed by children.
True, there were many serious questions about judicial decisions on a number of important court cases. However, these were overwhelmed by the time spent on thinly veiled attacks on Sonia Sotormayor, a lot of them dealing with a flippant remark she once made in a speech, claiming that a smart Latina with a varied background might render a better judicial decision than a white male lacking such experience. Wow! What an exhibition of bruised egos defending their manhood.
The remainder was spent making sure that Sotomayor understood that judicial decisions must be based solely on the law and not on one’s race, gender, experiences or biases. Veer from that and you become (horror of horrors!) an ‘activist judge.” Believe me, she understood. Unfortunately, none of it is true. It is all a fairy tale.
Over and over, one heard: “Do not countermand existing law;”“Every judge must be committed every day to not let their personal politics interfere with their decisions”; “Ultimately and completely, the law controls”; “Show fidelity to the law;’ “Never overstep the law.” All of these statements are based on the concept that judges apply the law, not interpret the,law.
Now, there may be a few laws where this rule applies. If a law states that “two plus two equals four,” application is simple. You don’t need a lower court, an appeals court and a supreme court for this. A single judge would suffice. Unfortunately, very few laws are that simple. The suject matter is complex, and the legalese makes it more so.
Let me provide a prime example –– the Second Amendment to the Constitution of the United States. The amendment states:
“A well equipped Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
Simple, isn’t it? All you need to do to apply this law is to understand what it mens? But what does it mean? Does it mean that all Americans have the right to carry guns? Maybe. But, if so, why is it coupled in the same short paragraph with the need for a well-regulated Militia? Does that mean that only those in the Militia have the right to carry guns since it is well regulated?
Many bright legal minds have grappled with this question, and it is only recently that the Supreme court decided (5 to 4) that the first meaning is the correct one. Still unsettled is whether that interpretation applies to the individual States. [Rotsa ruck on that.] But the question was not settled by applying the law; it was settled by interpreting the law. When it comes to interpretation, whether we like it or not, a judge’s race, religion, sex, education, biases, prejudices and upbringing all have their effect.
Though they would never admit it, this applies to all judges, regardless of their party affiliations .Just the contrary of the claims constantly made by Republicans during the Sotomayer hearing. This explains why there are so many 5 to 4 decisions. Unfortunately, as a matter of self preservation, Sonia Sotomayor joined the crowd in this delusion. Politics prevailed.
As to “ Activist Judges, I can only quote Senator Russ Feingold of Wisconsin, who defined an Activist Judge as “one who decides a case in a way you don’t like.”
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