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Wednesday, May 27, 2009

Lady Justice and SCOTUS

She carries a double edged sword to represent Reason and Justice in her right hand, in her left she holds scales to measure the support and opposition of the case before her, she wears a blindfold to prevent judgement based on the identity of the accused or the accuser. Judgement will be with Reason and Justice, balancing the facts of the arguments without consideration of those involved in the case. Fair and blind, Justice metes out her judgements based on facts and law.

Somewhere in almost every courthouse in America is a statue, a painting, an image of Lady Justice. She is the icon on our nation's Judiciary branch. A part of the checks and balances we learn about in school, our Judiciary branch is meant to be separate from the other two branches, the Executive and the Legislative, at its highest levels the Judiciary is subject to appointment by the Executive and confirmation by the Legislative. Not subject to the whims of the people and the ugly politics that can erupt during elections for other offices, the Judiciary is to stand alone using the Constitution and the standards of Justice to determine the legality of the actions of the other branches and the citizens.

Justice, the quasi-goddess, is meant to be blind; justice in the form of judges and justices however is typically not blind--perhaps sight impared, but not completely blind. This is because humans and not mythical figures serve in our courts. Humans that have religious beliefs, have social mores and norms with which they were raised, have their personal ethics and morals developed through their personal experiences, have their ideological bases which guide their intellect. While we are a nation of laws, while we have a Constitution that binds our society, while we have a system of governance that is representative of the will of the people, how the laws are applied, how the Constitution will be interpreted, what extent the powers of the governors will be exerted over the governed are decisions made by humans, sitting in a building, adorned with Lady Justice.

Yesterday many Americans became aware of the existence of the Supreme Court of the United States (SCOTUS) for the first time. The most anonymous branch of government, the Judiciary, has at its pinnacle the most anonymous members of the Federal government, the Justices of SCOTUS. Most Americans cannot correctly answer how many Justices sit on the Supreme Court. Of those who correctly answer that there are nine justices cannot name any of them, and only a very small number can name all nine correctly. But these nine individuals carry as much power as the President of the United States, the Speaker of the House and any Senator, they are the final arbiters of law in our nation.

Currently the nine Supreme Court Justices are: Chief Justice John Roberts, John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito. Other than the Chief Justice, list is in order of when each of the Associate Justices was sworn onto the Court, starting with Stevens in 1975 and ending with Alito in 2006. Once seated Supreme Court Justices have life tenure, they leave the bench either through voluntary retirement, impeachment by the Senate or death. No member of the court has ever been removed by the impeachment process, so in the history of the United States vacancies on the court occur only through the voluntary retirement of a justice or if he or she dies while serving on the bench.

At the beginning of this month Associate Justice David Souter informed President Barack Obama that he was retiring from the Supreme Court. This act by Souter allows Obama to fulfill one of the most important powers of his office, appointing Souter's replacement on the Supreme Court. Once appointed, the nominee must then go before the Senate and undergo a very important confirmation process. After hearings held by the Senate Judiciary Committee, that committee will then vote on the nominee, a positive vote will send the nomination to the entire Senate to vote on confirmation, a negative vote will require Obama to put forth another nominee.

Yesterday Obama nominated Sonia Sotomayor, a Federal Appeals Court Judge, to be fill Souter's seat on the Supreme Court. While the confirmation hearings for Sotomayor will not begin for some time, the confirmation process has already begun in the senate of public opinion and media relations. For the next several months, until she is confirmed by the Senate, and she will be unless some major suprise in her background is revealed during the confirmation process, Sotomayor's life will be on public display. And every detail will be put on the scales of public opinion as a reason she should or should not be confirmed to the Supreme Court.

By all accounts Sotomayor has a very liberal judicial philosophy. She will spark the debate between judicial conservatives who feel that the Judiciary should interpret law based on the Constitution and laws created by the Legislative and Executive branches and judicial liberals who feel the Constitution is a guide within which to create law from the Judicial branch to meet the needs of modern times. For the former judges interpret law and have a narrow view of the role of the Judiciary, for the latter judges may amend and create law from the bench and they have a very broad view of the Judiciary's role in our governance. Because Barak Obama won the election in November for President of the United States he gets to use his judicial philosophy in determining his nominees for Federal judgeships. Because the Democrats hold the majority in the Senate they get to use their collective judicial philosophy to confirm any appoints made. Because of all these factors sometime in late September we will witness the swearing in of Associate Justice Sonia Sotomayor to the Supreme Court of the United States.

Sotomayor's impact on the decisions of the court will be minimal until the next vacancy occurs on the court, or the next, or the next. Given her age, and presuming good health, one can expect her to serve for perhaps six or seven Presidential terms of office, giving her the potential to have a significant impact on SCOTUS decisions in the long term. Given that Justice Souter was part of a consistent 5-4 minority on SCOTUS decisions decided by one vote, her replacing Souter as one of four minority votes means little change in the prevailing majority's judicial philosophy and in the decisions rendered. Should one of the five in the consistent majority, Roberts, Alito, Scalia, Thomas and often Kennedy, vacate the Supreme Court during an Obama administration however, then Sotomayor's appointment and confirmation can, and probably will, be part of a 5-4 majority for those with a liberal judicial philosophy.

Of interest is that Presidential appointments to the Supreme Court do not always turn out how the appointing President intended. Of the four members of what is termed the liberal block on SCOTUS, two were appointed by Republican Presidents: Justice Stephens by Gerald Ford and Justice Souter by George H.W. Bush. While it is doubtful that upon being seated Sotomayor will change her judicial philosophy, it is certain that the culture of the court will shift with her addition to the bench.


Anonymous said...

A thoughtful essay, Dennis. I wanted to offer a comment on 'identity politics' which will be prominent in the debate over Sotomayor's confirmation, especially given her onetime remark that 'I would hope that a Latina woman would come to better decisions ... given the richness of her life experience' (paraphrasing). One of my favorite law ... Read Moreprofessors always said, it's not whether you are right or wrong, it is how well you argue that matters. His point was to develop the skill of legal reasoning and analysis. I would take Sotomayor's remark one step further and indicate that even if she would reach the same result as her (mostly old, white, male) peers, her reasoning that reached that result would take a different path based on her identity and life experience. And this is the value of bringing 'diversity' to the judiciary, and to our highest Court.

Anonymous said...

The best example that I can think of is Justice Sandra Day O'Connor's opinion in Planned Parenthood v Casey, a 1993 decision striking down restrictions on abortion. While O'Connor joined in the majority opinion of the court (and may have authored that opinion), what I remember is how she wrote with tremendous sensitivity about the burdens of ... Read Morechildbearing that only women must bear, and about how women's reproductive choices are central to shaping their life's destiny, and how important it was that the laws do not impose their own values on these personal decisions. This, from a Republican woman who married and never had children, but who was the only woman on the Court at that time. No man could have written these words and no man's reasoning could have displayed similar empathy for the plight of a woman faced with options in addressing an unplanned pregnancy. Reasoning, or how you reach decisions, matters and it can be informed by one's identity and life experience.

Anonymous said...

My name is Susan Hyman and I posted the first two comments as 'anonymous' because I don't have a google account. I'm happy to stand by my comments. Dennis is a good friend and I enjoy reading his insightful essays.

Anonymous said...

Interesting, but couldn't an argument be made that since Justice O'Conner never carried a pregnancy to term that she could not possibly have empathy for the nascent life inside the womb? Why do the burdens of one trump the other? Granted, if a fetus is nothing more than dead tissue or equivalent to a tooth or hair or nails, then no consideration is necessary and the mother is sole arbiter and custodian of her own body. However, science has not made a determination of when that group of cells forms what we would define as human life and if we are not sure isn't it our moral obligation to err on the side of caution and assume, until proven otherwise, that the unborn child is a human life which deserves empathy just as much as a woman with an unwanted pregnancy?

The argument that one can not make any kind of judgment on something unless one has experienced or is capable of experiencing a situation is a fallacy. This would mean that unless a judge's car is stolen he/she could not possibly be able to mete out a just punishment, yet we trust judges and other public officials all the time to make judgments on things which they have no personal experience. (A side note: the woman who was "roe" in "roe vs. wade" is now a practicing catholic and an abortion opponent. Applying your logic, does that mean that she, having experienced the burden of unwanted pregnancy and the consequences of terminating a pregnancy, fighting hard for the right to do so [probably an agonizing decision to fight so hard to the highest court in the land], have more credibility than a woman who is pro-choice?).I would think an argument could be made that someone who is not emotionally invested in a situation might actually be a better arbiter.

That having been said, I have not decided whether I think Sotomayor would make a good justice. I would think the true test of what makes a good Supreme Court Justice would be if he/she is capable, when faced with a situation in which the heart says one thing and the head says another, to go with the head. Going with the heart might be good for the micro but is disastrous when making policy decisions that affect the macro.

---just a poolman who has too much time to think--

Haiku Frank (D) said...

Obama's "Audacity of Hope" points out the importance to him personally the significance of Supreme Court appointments. He is a well-trained lawyer (Harvard Law School) and past constitutional law professor at the University of Chicago.

When Obama stressed "empathy" in appointing a Supreme Court justice, he meant that a justice makes decisions as a product of that justice's life experiences. Susan Hyman's aforementioned insight provides examples of Justice O'Connor's life experiences in making some of her profound decisions. Justice O'Connor graudated ahead of William Rehnquist, a classmate at Stanford Law School, but the corporate law firm Gibson, Dunn & Crutcher offered her only a legal secretary position. Instead, she went on to become a county counsel, and then ran for legislative office rising to the Republican majority leader of the Arizona Senate. Later, she served on the AZ Supreme Court and was recommmended by Sen. Barry Goldwater for the Supreme Court to President Reagan in the role of the "advise and consent" clause of the Constituion and the Senate process of "senatorial courtesy."

O'Connor's experiences facing sexual discrimination, but then working her way up state legislative politics influenced her judicial philosophy. Indeed, she had "empathy" for women's issues that men could never experience. She was also a passionate advocate for state legal powers over federal jurisidiction and the state's powers over the rights of individuals.

In Sotomoyar, Obama saw much of himself: A minority raised by a single mother and through diligence and merit excelled at an Ivy League law school. She is a role model as the first Hispanic appointed to the Supreme Court. It harkens back to the Edward James Olmos character in "The West Wing."

O'Connor blazed the trail for Sotomoyar. Sotomoyar graudated summa cum laude from Princeton, an Ivy League university that did not admit women until 1969. She had far more options in corporate law or as a prosecutor that O'Connor never had.

Lastly, Sotomoyar ails from genetic diabetes, so she may be "empathetic" to individuals with disabilities. Easily more so than the conservative majority on the court that constantly adds leagl barriers to the disabled, or against Republican Lily Ledbetter for sexual discrimination.

O'Connor has developed empathy and new life experiences in her retirement. She serves as caretaker for her husband, ailing from Alzheimer's Disease. (Susan Hyman: I'm open-minded enough to concede that O'Connor never had children, but I'm pretty certain she has been a mother.)

Sotomoyar will be confirmed by the U.S. Senate without a filibuster and even without resorting to a "nuclear option." If McCain wants to vote against the first Hispanic nominee to the Supreme Court he can answer to his Hispanic voters in AZ when he runs for re-election next year. He voted against the MLK Holiday in 1983 when he served in the House.

Finally, I can't resist a Haiku:

G.O.P., Limbaugh,
Gingrich bash Sotomoyar.
Schumer: "Be my guest."

Anonymous said...

Thank you Frank for strengthening my argument. Empathy is a double edged sword. One's life experiences might result in a deeper insight for a specific group of people while at the same time producing a blind spot for another group of people. For instance, Justice O'Conner's life experience might make her sensitive to gender discrimination or the burdens of a single mom who is grappling with the agonizing decision to terminate a pregnancy. However, without bearing a child, might that make her less empathetic towards the nascent life within a womb? Isn't it entirely possible that had she had children she might have ruled the other way because her life experiences created a different empathy? Again, the woman who was "Roe" in "Roe vs. Wade" had two diametrically opposed feelings of empathy due to life experiences (which I think we can all agree are dynamic and not static).

It would be physically impossible to have the nine justices represent the entire spectrum of empathy required to adequately represent the population of the United States. That is the genius of the framers of the constitution and the creation of three separate but equal branches of the government. The legislature and the executive are the proper places for empathy as a guide for policy. The founding fathers installed a mechanism to amend the constitution if necessary and it specifically is a difficult process which must flow through the legislative process, not the judicial process.

Finally, I cannot emphasize enough that I have the utmost respect for Justice O'Conner and and Judge Sotomayor and agree with Frank that their stories are very compelling and admirable. I am in no way impugning their integrity when I disagree with their judicial philosophy. Indeed, compelling stories are common to many successful people and who are we to judge that Justice O'Conner's or Judge Sotomayor's story is any more compelling than that of Frank Ricci, who overcame dyselxia and invested thousands of his own dollars yet was denied in part by Judge Sotomayor of a promotion (despite scoring the highest on the test) solely on the basis of his race?


Dennis said...

The following was sent to me via email by a friend and attorney, I thought it would add to the very good discussion going on, I will post in two parts:

Conservatives claim that they are rising up against "activist judges," who decide cases based on their personal beliefs rather than the law. They frequently point to Justice Antonin Scalia as a model of "strict constructionist" judging. And Justice Scalia has embraced the role. A few years ago, after the Supreme Court struck down the death penalty for those under 18, he lashed out at his colleagues for using the idea of a "living Constitution" that evolves over time to hand down political decisions - something he says he would never do.

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution's plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Justice Scalia's views on federalism are perhaps the clearest example of the problem with the conservative attack on judicial activism. When conservatives complain about activist judges, they talk about gay marriage and defendants' rights. But they do not mention the 11th Amendment, which has been twisted beyond its own plain words into a states' rights weapon to throw minorities, women and the disabled out of federal court.

The 11th Amendment says federal courts cannot hear lawsuits against a state brought by "Citizens of another State, or by Citizens or Subjects of any Foreign State." But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." If another judge used that rationale to find rights in the Constitution, Justice Scalia's reaction would be withering. He went on, in that 1991 decision, to throw out a suit by Indian tribes who said they had been cheated by the State of Alaska.

Conservative politicians insist that courts should defer to the democratically elected branches, but conservative judges do not seem to be listening. The Supreme Court's conservative majority regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act. The court has even established a bizarre series of hoops Congress must jump through to pass a law protecting Americans' 14th Amendment equal-protection rights. Congress must prove in many cases that the law it passed is "congruent" and "proportional" to the harm being addressed. Even John Noonan Jr., an appeals court judge appointed by President Reagan, has said these new rules - which Justice Scalia eagerly embraces - reduce Congress to the level of an "administrative agency."

Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go. In his view, the 14th Amendment prohibits Michigan from using affirmative action in college admissions, but lets Texas make gay sex a crime. (The Supreme Court has held just the opposite.) He is dismissive when inmates invoke the Eighth Amendment ban on cruel and unusual punishment to challenge prison conditions. But he is supportive when wealthy people try to expand the "takings clause" to block the government from regulating their property.

Dennis said...

Here is part 2 from post below:

The inconsistency of the conservative war on judges was apparent in the Terri Schiavo ordeal. Mr. DeLay, an outspoken critic of activist courts, does not want to investigate the federal trial judge and the United States Court of Appeals for the 11th Circuit for judicial activism, but for the opposite: for refusing to overturn the Florida state courts' legal decisions, and Michael Schiavo's decisions about his wife's medical care.

The classic example of conservative inconsistency remains Bush v. Gore. Not only did the court's conservative bloc trample on the Florida state courts and stop the vote counting - it declared its ruling would not be a precedent for future cases. How does Justice Scalia explain that decision? In a New Yorker profile, he is quoted as saying, with startling candor, that "the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world." That, of course, isn't a constitutional argument - it is an unapologetic defense of judicial activism.

When it comes to judicial activism, conservative judges are no better than liberal ones - and, it must be said, no worse. If conservatives are going to continue their war on the judiciary, though, they should be honest. They do not want to get rid of judicial activists, a standard that would bring down even Justice Scalia. They want to rid the courts of judges who disagree with them

Anonymous said...

well written email. however this is one conservative who does not like judicial activism whether i agree with the decision or not.


poolman said...

First of all I would like to thank Dennis's friend. He/She wrote a skillfully crafted argument which caused me to think. After a couple of hours of careful consideration I have come to the conclusion that he/she is absolutely right. There is no such thing as a 100% strict constructionist Justice. Does that mean that the theory of a narrow interpretation of the constitution is not valid? On the contrary, given the examples in the posts it appears that the examples of miscarriage of justice are the result of violating the theory of a narrow interpretation. Had Justice Scalia held to his principles, a more fair ruling would have resulted. So the miscarriage resulted more from the fallibility of men than the theory of a strict constructionist. Given the examples, it appears that both conservatives and liberals would benefit greatly from a narrow reading of the constitution.

The country is pretty evenly divided on the right and left whether you use a roughly 50% conservative/ 50% liberal or probably a more accurate 30% conservative 30% moderate and 30% liberal. A narrow reading eliminates the politics as much as possible, which is why the supreme court was set up as it was i.e. lifetime appointments. They are charged with a very important responsibility...the gatekeepers of liberty. Now we can argue reality vs. theory all day long and accomplish nothing. However because something is not 100% attainable is that a reason to throw away hope and not strive to change things for the better? I believe it was President Obama who articulated rather well that we cannot let perfect be the enemy of good.