Obama's Supreme Court Nominee
With the recent retirement announcement of Justice Souter, Barack Obama now has the responsibility of choosing another Supreme Court Justice. I wanted to share some of my thoughts on the l issues surrounding this choice.
1. First, Obama won the election and choosing SCOTUS justices are part of the perks for winning. So regardless of who he chooses, as long as the person is intellectually competent, I don't think the congress should filibuster or deny his choice. I don't think there should be payback for the Bork fiasco years ago. Bork was one of the most qualified selections of all time in my opinion and yet he was denied due to philosophical differences. I think that is wrong.
2. So who should Obama pick? Should it be someone who will make the SCOTUS reflect the makeup of America? We have 9 justices and yet only 1 black and 1 woman right now. That is about 11% for both. What about a homosexual? Or a transgender person?
I personally don't think that ones race, gender, or sexual orientation should matter and here is why. The law is the law. As Scalia recently stated, " I don't think there's ... a female legal answer to a question and a male legal answer to the same question. That's just silly." I agree with him. The SCOTUS rarely determines a person's guilt or innocence. They tend to focus on cases that have been appealed several times and will often see if an individual's rights have been neglected. This is a very important issue and a clear understanding of the law and how it is applied is a must.
Furthermore, if we are all equal then a persons life experience should not matter, correct? The law is supposed to be colorblind. Lawmakers make the law, not judges. Judges interpret the law, they should not make it up if they disagree with it. I will use Abortion as an example. There is not one word on abortion in the constitution, not one. Roe is flawed because the SCOTUS created a right out of thin air and somehow applied that right to a pregnancy. If the country wants abortion legal, then have the congress pass a law making it legal. I don't think that activist judges should be allowed to serve. I believe in the meaning of words and too often we see activist judges create new meaning, ie laws. That is just wrong.
Now, Ruth Bader Ginsburg argues the other side of me. She thinks that life experiences do matter and cites this: But life experiences inform the act of judging, and the experience of being a woman justice comes into play at certain moments.
Ginsburg, in an interview with USA Today, cited two from this term: one involving school officials who strip-searched a 13-year-old-girl, and another on pregnancy discrimination. In the strip-search case, some justices questioned the notion that the girl was traumatized by the event; Ginsburg suggested that they just didn't get it. "They have never been a 13-year-old girl," she told USA Today.
"It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
How does she know that they didn't understand? Was their understanding relevant to the case? What do you think?
3. Obama says that he is looking for empathy in his judges. Why? What does empathy have to do with the law? In baseball, do you want the umpire to be empathetic to the team that is losing? What does that imply? Will he not call a strike when it is on the corners if the lesser team is at bat? Again, this is silly in my opinion.
But here is Dick Durbin's take on the "empathy" issue: "What I hear in President Obama's statement is that he wants the justices of the court to try to understand the real world we live in and the impact of some of these decisions. Apply the law, but do it in a sensible fashion," Sen. Dick Durbin (D-Ill.) said on "Fox News Sunday."
So, Durbin wants the judges to understand the impact. Why? Again judges do not write the laws, congress does. It is the job of lawmakers to understand the impact. If Congress writes a law that says that everything created must be Blue and it passes with a 100% Yes vote in Congress and the President signs it, it is the law. The only decision the SCOTUS has to make is whether or not this law violates the constitution. For example, the SCOTUS cannot look at this law and say, "You know what, after studying the issue we have determined that Red would actually be better for the country, so we are changing the law just a bit to make everything Red." That is activism and that is wrong.
To summarize, I think Obama's choice should not be blocked unless the person is intellectually unqualified (say he were to choose me for example, I would vote NO!). I probably will end up disagreeing with his choice but, hey, he won and he has the right to choose.
I don't think that race, or gender, or sexual orientation should matter.
I want a judge who follows the law, doesn't create it, and I disagree with Obama that a judge on the SCOTUS has to show empathy.
Your thoughts?
In my experience good judges know the letter of the law but also know what type of wiggle room exists and how much wiggle is appropriate on a given issue. Is wiggle room right? Probably not. Does wiggle room ensure justice for all? Likely not. But I think wiggle room is the best way to accomodate the gray that exists in the world. And as to the second point, if it comes down to making a decision within the wiggle room then judges rely on their smarts but also their values which are developed in their life experiences.
Nothwithstanding the hubaloo around the replacement, I'm super impressed by Souter's decision to let go of his seat and enjoy his home state while he's able bodied. He's either fatigued with the politics of the Hill or he's smart enough to bow out while he still can ejoy life after the bench.
Even if the intention is good and right, it is not the place of the SCOTUS to create laws but to only interpret if they are constitutional or not.
http://ninthjustice.nationaljournal.com/2009/05/should-...
"The appointment of Sonia Sotomayor for the Supreme Court is the clearest indication yet that President Obama's campaign promises to be a centrist and think in a bi-partisan way were mere rhetoric. Sotomayor comes from the far left and will likely leave us with something akin to the "Extreme Court" that could mark a major shift. The notion that appellate court decisions are to be interpreted by the "feelings" of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice."
And Bean, what does Acorn have to do with Obama's pick for a Supreme Court justice? The election is over, move on.
Good blog, Rick. Can't argue with much of it, and you and I usually don't agree on much of anything.
There are 2 schools of thoughts on how judges should come to their decisions. Original intent, which I subscribe to and the Living Breathing document camp which basically allows judges to create law. (Roe v Wade is a good example)
If I had my preference, I would choose someone from the Original intent camp, but I didnt win, Obama won the election and one of the perks is that he gets to choose who he wants.
I may disagree with every decision that Sotomayer makes but as long as she is intellectually qualified, I dont think the GOP should oppose her. I think what happened to Bork was a disgrace and dont think it would be right to do the same to someone else based on ideological grounds.
The fact remains that she was originally appointed by Bush I, and kept rising in the ranks despite all of the racism that was going on. (makes you kinda of wonder if there really is a racism problem if a female latino can advance)
Now lets just wait through the confirmation process to see what types of skeletons might come out. But this is a big honor for her, so I congratulate her.
Back to your point, using murder and stealing as examples is beyond religion. It's universally accepted that they are unacceptable in a modern society.
I would rather have someone on the high court that is intelligent and has "a heart" than someone who makes decisions "by the book. all the time" That's the whole reason we have a Supreme Court, for those cases that reside in the gray areas. The only thing I can think of offhand that a Supreme Court case decision should not be based upon is religious belief.
I remember that blog....Long but thought provoking.