Sessions on Sotomayer

It’s amazing to me, the things Republicans say about Supreme Court nominees, with a straight face.

Here’s Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, in the latest AP article (“No filibuster, but Sotomayer battle still looms“):

We have an absolute constitutional duty to make sure that any nominee, no matter what their background and what kind of life story they have, that we examine that so the American people can know that the person we give a lifetime appointment to … will be faithful to the law and not allow their personal views to influence decision-making.

The Republicans want automatons, who read the law and spew out the answers, without regard to their own “personal views” and life experience. As if there were some pure rendering of the Constitution that could be gleaned, over and over, without regard to who we are, what we’ve read, where we went to school, who our parents are, who we married, whether we have children, whether or not we’ve been discriminated against, or victimized, or grown up in a Housing project.

Why do we need people to do this? Wouldn’t it just be better to have some kind of sophisticated computer system — like the BCS, used by college football to pick the two best teams each year for the national championship game — that could take in all the data and spit out the answer Rhenquist would have loved, over and over and over again?

I’m sure Iphone could make an app for that.

I have a friend here in Ohio, a Jewish Republican, running for statewide office. He is a marine, fought in Iraq. In high school, he was the quarterback of his football team, a public high school. His team was a melting pot for blacks and Jews, he told me. But as they travelled around Ohio, they often encountered anti-Semitism and racism. Once, they travelled to Cleveland for a game, walked into the visitor’s lockerroom, and, there on the chalkboard was a Swastika, with the message: “Go Home Blacks and Jews.”

(I’m happy to report, the road team won the game.)

That’s the kind of life experience that I’d want my Supreme Court Justice to have, and — yes — to draw upon, when making decisions about, say, hate crime law. Or anything else.

There’s a killer New Yorker article this week, about Chief Justice John Roberts. It quotes Roberts, from his confirmation hearings — an illuminating take on exactly what Republicans mean when they talk about being “faithful to the law”:

Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

Yet the New Yorker goes on to report:

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican party.

We are supposed to believe that in each and every case, he has been faithful to some objective constitutional law, as laid down by the Framers, and not, as Sessions put it, allowed his personal views to impact his decision making?

It’s incredible to me, too, that the media generally accepts this line of argument without challenge. (Wait for it — we’ll hear it over and over during the Sotomayer confirmation trials from the GOP side.)

You don’t have to look very far to see just how Roberts’ personal views impact his decisions. He has a filter, and he uses it, just like the rest of us.

The New Yorker mentions a case in Connecticut, brought by white firefighters “denied promotions even though they scored better than black applicants on a test.” Roberts, siding with the firefighters, grilled the lawyer defending the city:

Now why is this not intentional discrimination? You are going to have to explain that to me again, because there are particular individuals here. And they say they didn’t get their jobs because of intentional racial action by the city. … All you care about is who is getting the promotion. All you care about is his race.

Sounds to me like his personal views are influencing his decision making.

Roberts was the captain of his football team in high school. Here’s a guess: he never walked into a lockerroom, saw a slur on a chalkboard, and felt — they’re talking to me. It’s me they hate.

It might not change his decision. But I bet it would influence him. As it should.

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5 Responses to “Sessions on Sotomayer”

  1. Jenn Rolnick Borchetta says:

    i love how you talk about making an iphone ap for judicial
    decisions. ha. “judicial activism” is such a farce. by which i
    mean, it is a red herring. we do not live in a code system. in some
    countries, when a lawyer is asked “will x happen legally if i do y?”
    and the lawyer can answer yes or no definitively because all of their
    laws are written out — yes or no. in our country, when a lawyer is
    asked that question, the answer, always, is “it depends.” this is
    because there are two bodies of law in our country: code — or
    statutes — written by legislators, and common law — case decisions
    — written by, you guessed it, judges. in order to answer a legal
    question, a lawyer has to go out out and read case law — judges’
    written answers to previous questions — to figure out the answer.
    judges make law. end of story.

    re: sotomayor and whether she is pro-choice: liberals are
    terrified of roe being over-turned because of the potential ripple
    effect. i understand that, but i think a better indicator of
    sotomayor’s likely position on a future case would be whether she
    believes the constitution protects a woman’s rights to choose, not whether she supports roe. it looks, from what i have read, that she would answer that question in the affirmative. some of the examples the Times cites as potentially raising a red flag on her position i think do not do so. for example, they cite a case in which she said abortion protestors should have
    their day in court. sometimes civil rights stand in opposition: my
    right to freedom of speech (protesting) against your right to freedom
    of privacy (abortion). protestors who allege their freedom of speech
    has been violated should absolutely have their day in court. that to
    me says nothing about her opinion on freedom of choice.

  2. Neurotic Dem says:

    Awesome comment, Jenn. Thanks for the legal opinion!

  3. Jon says:

    I wrote a comment on a NY Times blog a while back which addresses the same point the New Yorker article makes in a slightly different way: if one can predict with 95% or better certainty which way each Justice is going to vote just by reading the case ahead of time, then it is clear that it is their personal views, not the Constitution or the Law, which decide the cases.

  4. Neurotic Dem says:

    Great point, Jon. I just wonder why the media is adopted the GOP notion on this — that Supreme Court judges should be umpires, only. I feel like even Democrats are afraid to push back on this point. I wish Democrats would take a more offensive-minded approach on this and say: Of course who we are and what we lived through colors our opinion of the law; we should have it no other way!

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