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A Hard Time to be a Republican
Warning! The following contains political opinions that might offend sensitive readers.
And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, "But for the grace of God there go I." --Clarence Thomas (at his confirmation hearing)
When the Republicans were in power there was little need to worry about a backlash from the inane commentaries of the right-wing media. No matter how ridiculous the raw sewage spewing from the mouths of Rush Limbaugh, Glenn Beck, Sean Hannity, Bill O'Reilly, and other no-nothing* conservatives, Cheney & Company did not have to concern themselves. They were in power and knew how to manipulate the other branches of government. They also knew how to manipulate the media, even the non-right-wing media. What a few oddball allies said to their audiences didn't matter.
Things have changed. Republicans have to concern themselves with getting back in power. They have to oppose not only the Democratics ("liberals," "socialists," or the "Democrat Socialist Party" as they cleverly refer to their opponents), but they have to distance themselves from the more absurd and inflammatory remarks of their no-nothing minions in the media. Even the dimmest Republican knows that calling a federal judge nominated to the bench by President George H. W. Bush a "reverse racist," a "Latina woman racist," a "socialist," an "affirmative action candidate," "not very smart," or a member of the "Latino KKK" isn't helping the cause. The name-calling is especially disturbing because of the twisted machinations needed to make their cases. Then there is the media addiction to Dick Cheney, a man who wasn't right about anything important for eight years and who led the United States into one dead end after another. The rhetoric of these attack dogs isn't just unkind—it's certifiably delusional.
It's not as if the Democrats haven't handed the Republicans fish in a barrel to annihilate, a fact which should make easier their task of elevating themselves by belittling the opposition. Obama's remark about empathy being an important characteristic of the person he would nominate to the Supreme Court was a bone the attack dogs could have chewed on for months without resorting to fantasies about racism, socialism, intellectual mediocrity, and hate groups. Obama's been to law school, and did quite well we're told. He taught Constitutional law at the University of Chicago Law school for 12 years. So, did he miss the class where the duties of a Supreme Court justice were discussed? Where did he get the empathy clause? From Alito? or Scalia? George H. W. Bush? Empathy is relevant to a trial judge in determining sentencing and, in some cases, in determining the degree of culpability of a defendant. A Supreme Court judge's job, however, is mainly to hear appeals and either rule on the constitutionality of a law or clarify the meaning of a law. The only empathy a Supreme Court judge might need is the ability to put herself in the shoes of the framers who wrote the Constitution or the legislators who passed a law or an amendment. Empathy for a defendant in a case that reaches the Supreme Court is not a quality needed by a justice to do her job well.
Obama's remark about looking for a Supreme Court justice who would consider the consequences on society of her decisions, echoed by his nominee Judge Sonia Sotomayor, could have been a weak point for the attack dogs to bite. “I strive never to forget the real-world consequences of my decisions on individuals, businesses and government,” said Sotomayor.* Would the Warren Court have unanimously ruled in Brown v. Board of Education if the members had based their decision on the immediate consequences likely to follow? (They had no way of knowing what the long-term consequences would be.) The real-world consequences of law are the business of legislators, not judges. Even bad law, if constitutional, must be upheld by judges and enforced by the executive branch. Otherwise, the rule of law means nothing. Of course, the fact is that rule of law has meant nothing in this country for quite some time. In any case, predicting the consequences of a judicial decision is often as risky as predicting the behavior of a justice once appointed to the bench.
The Republicans can't attack the remarks of Obama or Sotomayor because about the only thing the no-nothings agree on is that they want a justice who will overturn Roe v. Wade and make decisions favorable to corporations and businesses. Their only concern is with the consequences of decisions. They don't really care about the rule of law. They care about rule by the laws they favor. The no-nothing view is that justices should interpret and apply the Constitution in ways favorable to their do-nothing-liberal philosophy. Even the great loudmouth promoter of "originalism," Antonin Scalia, bent the Constitution to his hypocritical will in overturning 200 years of legal understanding in the case regarding the District of Columbia's handgun ban.
It is a well known fact that the Constitution does not come with a set of instructions on how to use it. Even so, it's a document written by people who intended certain things. Some of those things specify limits and extent of powers granted to the different branches of government. Some of those things specify some of the rights of the people. The first rule in interpreting any document expressing the will of another is to determine, by the words used, what the writer intended. A Supreme Court justice must determine what the framers intended when ruling on whether a law is constitutional or not. At least that's a job it gave itself in Marbury v. Madison, and it's been our tradition ever since.
Words, however, don't always express an intention clearly. What constitutes a "speedy and public trial," "cruel and unusual punishment," an "unreasonable search and seizure," or "due process of law"? Some say, at least when it suits them, that vague expressions should be clarified by considering how they would have been applied at the time they were written. Whatever was considered a speedy trial or excessive bail in the 18th century is what we should consider speedy or excessive today. If they executed people for crimes in the 18th century, then capital punishment can never be considered cruel and unusual. The problem with this method of interpretation is that it puts the Constitution in an historical straightjacket that does not take into account that our conceptions of key ideas change. At one time a witness to a crime would have been considered a peer suitable for serving on a jury hearing evidence about the crime witnessed. Our conception of fairness has evolved. We now have technology that allows us to do visual or electronic searches undreamt of by the founding fathers. Why shouldn't we interpret vague expressions according to current conceptions, as long as we remain faithful to the spirit of the writers' intentions? Furthermore, since some expressions make sense only if one assumes the writer based them on specific unstated principles, another rule of interpretation allows for specifying rights or limits to power that are implied, but not stated, in the Constitution.
Some worry that allowing judges to determine the spirit of a rule is to allow them to insert their own private philosophies into the law under the guise of being faithful to the intent of the framers. If there is doubt about the framers' intent, let legislators clear things up. This view is called judicial deference, and it is very popular among those who consider themselves strict constructionists when interpreting the Constitution. Chief Justice Rehnquist put it this way in arguing that states should be allowed to forbid burning the flag in protest: if a majority of the states think it's okay to ban flag burning, then the court should not overturn these state laws no matter what the First Amendment says and no matter what precedents have been set. Judges should defer to legislatures except in cases of egregious violation of the Constitution. Rehnquist's approach is just smoke and mirrors. It doesn't eliminate the problem of determining the framers' intentions from their vague words. The court must now determine whether a new law is consistent with what the framers meant. To claim a priori that it doesn't matter what the framers meant if the majority of state legislators approve something is to abdicate one of the few responsibilities of the Supreme Court: to protect the constitutional rights of the people against the tyranny of the majority and infringement of those rights by government.
The poverty of the GOP is richly illustrated by the critics of Sotomayor, who apparently can't find egregious writing in her decisions and have had to ferret out comments at roundtable discussions for scrutiny. Even then, the critics reveal their own venality and lack of interpretive ability. Here is the Heritage Foundation's Deborah O'Malley going full bore on Sotomayor for some comments made at Duke University:
...she was even so bold as to assert her “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." As Stuart Taylor has aptly noted, “Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.” During her hearings, senators should demand an explanation for her radical statements of ethnic superiority.
First, Taylor's claim is wrong. Any prominent white male who referred to these comments as being claims of ethnic and gender superiority would be branded an illiterate moron, except by the no-nothing party. Second, you don't need to be a linguist to deconstruct this simple sentence. She said "I would hope," meaning I would hope. It's not inevitable that a person will apply life's lessons in making judgments. She may have had rich and varied experiences as an intelligent Puerto Rican girl who lost her father at age nine and was raised by a loving mother who encouraged her to strive for whatever she wanted. She may have fulfilled the unlikely scenario of a kid from the Bronx graduating summa cum laude from Princeton and serving as an editor of the Yale Law Journal at Yale Law School, from which she graduated in 1979. None of this, however, would have guaranteed that she had gained any insight from her experiences. So, yes, she would hope that she had gained some wisdom from her life's journey and that a white male who hadn't lived that life would not be as wise as she would hope she would be in making judicial judgments. Finally, even though you heard it on FOX News, she did not say "a white male is not as qualified as a Latina woman to make legal decisions."
If the right-wing critics weren't so blinded by their own fantasies they might have wasted their time attacking Obama for claiming that Sotomayor would have restated her remarks if given the chance.* He might have restated them had he said them, but he shouldn't be speaking for the judge. She doesn't need to restate anything. The attack dogs need to be whipped until they can understand a simple sentence in English. The irony is that these no-nothings pontificate about the qualifications needed for someone to do a proper job of interpreting documents on the Supreme Court when they can't even interpret a simple sentence without twisting it to fit their delusions and fantasies.
II
Conservatives are still impressed by the comments John Glover Roberts made during his confirmation hearings for Supreme Court Chief Justice:
Judges and justices are servants of the law, not the other way around. 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 ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
If any conservatives have read this far, I ask them to read again the last sentence in the Roberts quote. Judges may operate within a system of precedent, but they are under no constitutional requirement to do so. Rule by precedent is a tradition, not a legal requirement. The tradition provides stability and a sense of predictability and fairness to our legal system. Without the guidance of precedent, our judicial system might appear to be arbitrary and whimsical. In any case, the judicial oath doesn't require justices to affirm precedents, nor does it require them to be umpires. I would rank the umpire analogy as one of the worst ever made by a judge, right up there with Oliver Wendell Holmes's analogy of yelling fire in a crowded theater to make his point about the lack of constitutional protection for those passing out pamphlets advising people not to obey the draft laws.
The rules of a game differ in important ways from the rules of law. Very rarely does an umpire have to interpret a rule, and an umpire never has to determine whether a new rule violates some set of Super Rules comparable to the Constitution. If Roberts really believes that his job is to apply rules the way an umpire does, then he shouldn't be on the Supreme Court. His job is to determine whether some new legal rule violates the Constitution or to determine what is meant by a legal rule whose meaning is unclear (thereby making it unclear what the law forbids or allows). The latter cases come up when a rule is applied in a situation that the lawmakers did not anticipate. It is inevitable that this will happen frequently, given the nature of legal rules and human behavior in an evolving society. Laws, to be useful, have to be general. Nobody can anticipate all the individual situations to which a general rule might be applied in the future.
One reason conservatives like the umpire analogy is that it allows them to pretend they really care what the Constitution says, while clearly supporting decisions that fit with their anti-liberal view of things and opposing decisions that don't fit their anti-liberal view. If it fits with their view, then that's what the Constitution really says. If it doesn't, then those who say it's constitutional are advocating that judges make law instead of just applying it. The claim to be an umpire is understood as code for "I apply law; I don't make law." And that is code for "I have conservative, anti-liberal political values." The idea that judges shouldn't make law is an absurdity, even though it is the catcall of conservatives. What is the law? It's not only what the legislatures call law; it's also whatever the courts decide. When the Supreme Court rules about the meaning of something like the Americans With Disabilities Act, it makes policy. Somebody challenges the meaning of 'disability' and the Supreme Court has to clarify what constitutes a disability. It makes policy in so doing. An employee challenges the application of the law by her employer because the employer refuses to accommodate her disability. The court is asked to rule whether the act was meant to be applied narrowly or broadly. If the former, then a certain policy would ensue and the employer will be happy. If the latter, then a different policy would ensue and the employee would have to be accommodated. The Court may not create policy out of whole cloth, but to say it doesn't make policy is naive.
Much has been made by the conservative attack dogs about Judge Sotomayor's comment that it is in the court of appeals that policy is made. The only problem I have with her remark is that she didn't point out that sometimes the courts make rulings that make it very difficult for others to figure out just what policies will pass muster if they come before the court.
This leads me to my final comment about this political mud bath. Some of the dogs are attacking Sotomayor's position in a case now before the Supreme Court. It involves her agreement with the other two judges in the 2nd US Circuit Court of Appeals that the city of New Haven, Connecticut, was justified in getting rid of a test used in determining promotions for firefighters because the city was afraid of getting sued by minority firefighters. Why were they worried? No minorities were passing the test. Because the guidelines on racial quotas, racial discrimination, and affirmative action given to society by the Supreme Court over the past several decades are confusing and conflicting, the city has a legitimate concern that they might be sued by minority firefighters. Thus, they got rid of the test. The Circuit Court agreed that the city was justified in doing so. The fact is that the Supreme Court has not provided clear guidelines as to what is and what isn't allowed, what would be and what would not be considered unjustly discriminatory. To call Sotomayor's decision racist or discriminatory is gratuitous. The decision of the Circuit Court will give the Supreme Court one more chance to clarify what policies are legally discriminatory and what policies are not. If the past record of the Supreme Court is an indication, don't expect too much. (For those with an interest in Supreme Court history, here is an exercise for you: research the Court's attempts at clarification of 'obscenity,' 'invidious racial or sex discrimination,' 'unreasonable search,' or 'hostile work environment'.)
In any case, the Supreme Court selects which cases it will hear and, though it agrees to review only a small percentage of cases decided in Circuit Courts, it usually overturns the ones it does hear. When a Supreme Court decision is rendered in the New Haven firefighters case, it may be a 5-4 decision. The split will not be because five judges are applying the law and the other four are trying to impose their own personal biases onto the law (despite what Scalia may say** in his written opinion). It will be because five share a particular political philosophy and four don't agree with them. You can take with a grain of salt whatever comments are made about that decision by Limbaugh, Cheney, Pat Buchanan, Gingrich, Beck, the pundits at CNN or FOX, or the all-knowing one who considers criticism of him an infringement on his rights, Bill O'Reilly.
With friends like these, Republicans in office can't do justice to the foibles of their opponents. Obama will continue to act as if there is only one party, his, until he has some real opposition from the GOP. Everybody needs opposition to force them to defend their positions and to keep them from excesses and disastrous decisions supported by a bunch of yes-men afraid to express a dissenting viewpoint. The opponents have to have credibility, which Cheney lacks, and they have to appear to be sane and sober, if not fair and balanced, which Limbaugh, Beck, O'Reilly, and the other right-wing pit bulls seem increasingly unable to accomplish. (My apologies to all you real pit bulls out there.)
__________
*note: The no-nothing party can be recognized by their incessant and constant bellowing of the equivalent expression to "no, we don't like nothing and we don't want to do nothing because we stand for nothing except being against anything "liberal." We don't want no taxes. We don't want no gay marriages. We don't want no social programs. We don't want nothing except more babies to grow up to fight in wars, grow the economy, or be buggered by priests. Do I exaggerate? Very well, I exaggerate. How unkind of me. Maybe I should use the same kind of restraint and integrity being shown by the ones I'm referring to. Hmm.
**note: On more than one occasion in his written opinions, Scalia has accused those justices who disagree with him of trying to impose their own personal values on the Constitution. Here is what he wrote in Abdul-Kabir v. Quarterman: "...in my view the meaning of the Eighth Amendment is to be determined not by the moral perceptions of the Justices
du jour, but by the understanding of the American people who adopted it—which understanding did not remotely include any requirement that a capital jury be permitted to consider all mitigating factors. If, however, a majority of the Justices are going to govern us by their moral perceptions, in this area at least they ought to get their moral perceptions right the first time. Whether one regards improvised death-is-different jurisprudence with disdain or with approval, no one can be at ease with the stark reality that this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row. Relief from sentence of death because of the jury’s inability to give “full effect” to all mitigating factors has been made available only to those who have managed to drag out their habeas proceedings until today. This is not justice. It is caprice."
* AmeriCares *
