Jurisprudence and The "Con" Game

Hola! Everybody...
I awoke to the news that Obama has picked Sonia Sotomayor, a “Nuyorican” who rose from Bronx housing projects to one of the most demanding US Circuit Courts. Let me just say that I am -- yes! -- I am proud of the Sotomayor nomination. she comes from my world, and perhaps we need more Nuyoricans/ Latino/as to serve as powers of example to our children.

Of course, before she was picked, conservatives were already whining -- gnashing teeth and tearing at their clothes.

Stay-tuned for a lot of mention of “judicial activism,” something very evil, right up there with satanic rituals involving the sacrifice of unborn lives (and stem cells), pulling the plug on Terry Schiavo, teaching evolutionary theory to our children, and, well, all that nasty, anti-Jesus shit we liberals engage in all the time...

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-=[ The Judicial Activism (neo)Con ]=-

“... 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... ”

-- Sonia Sotomayor

This morning Obama chose Sonia Sotomayor as his pick for the Supreme Court of the United States (SCOTUS). Even before she was nominated, there was a concerted effort to smear and disqualify her. The conservative attack strategy will be three-pronged.

The first smear is that she’s a “lightweight.” Evidently a woman of Puerto Rican parents who grew up in the projects of the South Bronx, diagnosed with diabetes at age 8, who then made it to summa cum laude at Princeton University, where she earned the highest award given to Princeton undergraduates, Pyne Prize, who then went on to get her J.D. from Yale Law School, where she was an editor of the Yale Law Journal equals lightweight.

Only in the alternative, reality-challenged universe of Republicans could this be true. This is a weak argument and won’t have much traction, though it will serve as a way to create the initial smokescreen to take away from what should be the focus: her judicial philosophy.

The second smear attack (“swift-boating”) utilizes the quote I’ve posted above. It’s a common neoconservative attack ploy: take a quote out of context and beat the public over the head with it. And one could make an argument that the quote, taken out of context, makes for a poor judicial temperament. However, read in its original context, it’s a powerful message. Here’s the full quote:

“... Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown. [...]”

Notice that she’s not advocating a view that one’s gender or race makes one better qualified. Rather, she’s pointing out that 1) life experiences count, and 2) even great white men have come to judicial conclusions that trampled on the rights of minorities and women. These are historical facts, not conjecture.

Finally, the last strategy, and the one with most traction, is the whole notion of “activist judge.” It is essentially a scam. The fact is conservatives only care to point out such “activism” when rulings go against their own political beliefs and principles. When rulings go the other way it isn’t activism, it’s justice, or it’s rooted in the Constitution, etc.

When was the last time you heard the phrase, “conservative judicial activism”? Probably never. Perhaps you should hear it more often.

In every case where a court issues a decision on a controversial matter that produces an outcome which right-wing ideologues dislike, they immediately start -- without bothering even to learn what those issues are, let alone bothering to read anything about them -- condemning the court’s decision as some sort of lawless expression of “judicial activism.” In reality, the only ones engaged in “judicial activism” -- which means, I suppose, determining the propriety of a court ruling based on outcome preferences rather than legal analysis -- are the ill-informed critics of the court’s ruling, who are judging the ruling based exclusively on their objections to the outcome.

“Judicial activism” essentially refers to the willingness of judges to overturn laws -- and to their actually doing so. It gets more complicated.

In its neocon usage (read: “liberal” form), judicial activism implies an approach to the Constitution that emphasizes the ambiguity of language, recognizes the flexibility of meanings and circumstances, and tries to respond to the spirit of the document. In certain cases, it has resulted in the establishment of legal principles, such as the right to privacy, which are seen to “inhere” in the Constitution, despite the fact that the words themselves do not appear there. What conservative commentators have done, with the Warren Court as whipping boy, is to wrap this all up as “loose constructionism” and then associate it with a general cultural permissiveness and a “politicization” of the law that they blame for the decline of post-Eisenhower America.

Whew! LOL!

But conservatives have their own brand of judicial activism, no less ideological and no less influential. It is distinct in its methodology (tending toward a narrow interpretation of text) and in its values (tending to give priority to property rights over civil rights, for example). Yet when it comes to the fundamental action of activist jurisprudence -- the overturning of laws -- conservative and liberal judges are equally powerful.

The methodical erosion of the rule of law in America has many aspects, and one significant one is that conservatives have been trained to believe that they have the right to have judges issue rulings that produce outcomes they like, and when that doesn’t happen, it means the judicial process is flawed and corrupt. Put another way, conservatives have been taught that they are entitled to have courts ignore the law in order to ensure the outcomes they want.

Either way, all this won’t work. Why? Because Sotomayor’s credentials are impeccable. Put this nomination in the books, folks. Sotomayor, imminently qualified, will become the first Latina Supreme Court justice!

Wepa! (<-- Nuyorican expression of excitement)