This column originally appeared on The American Spectator on June 3, 2009.
The 2005 nomination hearings for Supreme Court Chief Justice John Roberts provided a moment of unifying clarity for our politically and ideologically riven nation. Roberts explained the role of a judge as like an umpire in a baseball game. The umpire is supposed to call balls and strikes and fairly and objectively apply the rules of the game. The umpire is not supposed to get in the game and play for one team or another, whatever his personal "empathies" might be. This immediately calmed the nomination atmosphere, as the entire nation, including liberal Democrats and conservative Republicans, seemed to join in saying "Amen," that is exactly what a judge is supposed to do.
But that was not good enough for then Senator Barack Obama, the ultraliberal from Illinois, who voted against the overwhelmingly confirmed Roberts. He did that because the explanation Roberts gave above does not reflect Obama's judicial philosophy, as Obama has forthrightly told us. Obama does not want judges to objectively apply the law to the facts of each case, without favoritism. What Obama has said is that he wants judges who will decide which side in a case deserves their "empathy" based on the judge's personal morality, and then favor that party regardless of what the law or even the facts say. We will see below how that "empathy" works in a couple of particular cases.
So if the umpire has empathy for the team in the field, and the batter hits a tapper in front of the plate, and the catcher trips and falls in trying to field it, Obama wants the umpire to field the ball and throw the runner out at first. This is also the judicial philosophy of Obama's first Supreme Court nominee, Sonia Sotomayor.
Sotomayor's Experimental Law
Sotomayor helpfully explained her legal philosophy in an article published in the Suffolk University Law Review in 1996 entitled "Returning Majesty to the Law and Politics: A Modern Approach." Sotomayor warms up saying in the second paragraph, "The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances." She quotes approvingly former Second Circuit Judge Jerome Frank, founder of the school of "Legal Realism," who wrote in "his classic work, Law and the Modern Mind," in 1930, that the law is "uncertain, indefinite, (and) subject to incalculable changes." In taking us back to the 1930s for her "modern" ideas, Sotomayor is the perfect soulmate for Obama, whose so badly retro economics from the 1930s has the dumbstream press so breathless in anticipation.
Sotomayor then uncorks this beaut:
The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be lightly made, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of the law is not an unfortunate accident; it is of immense social value." [Emphasis added.]
In other words, a legal system that empowers Sotomayor to impose from the bench her exciting, new, experimental ideas from the 1930s is just of such immense social value to the rest of us. But Sotomayor continues:
Frank believed that in the complex, fast-paced modern era, lawyers do themselves a disservice by acceding to the public myth that law can be certain and stableâ¦.[C]hange -- sometimes radical change -- can and does occur in a legal system that serves a society whose social policy itself changes. It is our responsibility to explain to the public how an unpredictable system of justice is one that serves a productive, civilized, but always evolving, societyâ¦.Frank's point that the public fails to appreciate the importance of indefiniteness in the law must be addressed through better education of the public by lawyers and others, including government officials.
Silly public, Trix are for self-reverential judges, wisened by their life experiences, about which we all need to be schooled by lawyers and government officials in the know.
James Bopp, General Counsel of the James Madison Center for Freedom of Speech, explains best what this means, writing:
She calls it a "public myth" that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one's rights or obligations under it are. What we have, she writes, is an "unpredictable system of justice." And she believes this "continually evolving legal structure" which leads to what she calls "the uncertainty of the law" is a good thing for society.
This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor's position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.
This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place "empathy" above impartiality. After all, if the law is uncertain and constantly changing, why shouldn't a judge rule in favor of the party that she likes best or agrees with most? Sotomayor's philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It destroys any confidence Americans might have in the law's fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.
Change for Thee, Not for Me
Sotomayor's philosophical ruminations are sophistry designed to excuse judicial lawlessness. With the law uncertain, impermanent and experimental, the judge is free to indulge in making up whatever new legal impositions he or she desires, without legislative or democratic authorization. The judge is free as well to cast aside impartiality and rule for whichever party is politically correct, or deserving of judicial "empathy," based on the judge's personal morality, and the "richness" of his or her unique "life experiences." It is just yet another power grab, maximizing the power of self-indulgent judges like Sotomayor. The public doesn't like it not because it doesn't understand the realities of "what happens in the courtroom," but because even the unwashed yahoos can figure out that this is contrary to the whole notion of the rule of law, and the fundamental concept of democracy.
In response to "ever-changing social, industrial and political conditions," our society holds regular elections, where a self-governing people debate and then vote for the changes in law and social policy they think are appropriate. The people then rightly expect judges to enforce these laws, not make up different ones, based on their "personal life experiences", as well as what they read in the New York Times yesterday, or saw on 60 Minutes last week.
Sotomayor's notion that uncertainty, change, and even experimentation in the law, to the point of unpredictability, is somehow good for society is oblivious to reality. Investors around the world look precisely for stable legal regimes where the rule of law prevails, and they can know precisely what they are getting into. Working people, the little guy, benefit precisely from capital investment, which translates into increased wages. Sotomayor's "make it up based on how you feel that day" judicial philosophy is an investor's nightmare, still another contribution to Obama's apparent devotion to inducing outright capital flight from America, as in poorly governed banana republics.
Sotomayor's arbitrary legal philosophy also undermines respect for and voluntary compliance with the law. People expect and want the courts to follow the model of the traditional Roman statue representing justice, a seated, robed tribune wearing a blindfold and holding a balanced scale. As Bopp says above, if people see justice as casting off the blindfold and engaging in favoritism for the politically correct and influential parties, they will lose respect for the law and comply with it only when they are forced to do so. Sotomayor's legal philosophy brings me back to the question: If the courts don't have to follow the law, why should I have to?
We can test Sotomayor's judicial philosophy by applying it to some established precedents revered by liberals. Brown v. Board of Education, decided in 1954, held that separate but equal public schools are inherently unequal and discriminatory and, thus, unconstitutional. Is that an established doctrine in our law now, or is that impermanent, experimental, fluid, and pliant? Suppose changing social and political conditions include development of a heavy Muslim majority in some areas around Detroit that wants its own, separate, Islamic public schools, excluding everyone else? Suppose that case comes before a Muslim District Court judge? Can he be expected to make a wiser ruling establishing new directions and vistas for the law based on his own life experience?
And what about Roe v. Wade, decided in 1973? Is the constitutional right to an abortion found in that case an established doctrine in our law now? Or is that right an impermanent legal experiment that can be washed away by new, modern technology, now allowing us to view the unborn child all but waving to us from her mother's womb?
No Empathy for White Firefighters or Gun Owners
We can see how the Sotomayor/Obama judicial philosophy works in practice by examining how Sotomayor has applied it in some recent cases. In accordance with its civil service laws, the City of New Haven in Connecticut developed a written examination for the promotion of firefighters to senior command levels in the city's Fire Department. The city hired expert outside consultants to advise it on how to ensure that the test was not racially biased. Dozens of firefighters showed up and took the test on the appointed day. But based on the test results, only white firefighters, along with maybe one or two Hispanics, would be eligible for promotions, at least for the available openings at the time. This spawned a local racial and political controversy, and the city government decided as a result not to hire anyone. The city admitted that the white firefighters lost the promotions they had earned through their hard work in achieving the top scores on the test solely because of their race in the heavily black city.
But these white firefighters earned no empathy from Sonia Sotomayor, who joined in a one paragraph ruling affirming the dismissal of their discrimination lawsuit against the city in Ricci v. DeStefano. Her empathy went to the politically correct local black political power structure in the city. The case is now before the U.S. Supreme Court, which has overruled Sotomayor rulings 80% of the time.
The same liberal political bias was revealed again in Riverkeeper v. EPA. Riverkeeper, another extreme environmentalist group, led by Robert Kennedy, Jr., sued the Bush EPA claiming it wasn't doing enough to enforce the Clean Water Act. The group demanded that EPA require additional expensive technologies to reduce the number of live river creatures sucked into the cooling water intake valves of power plants. The statute instructs EPA to weigh the cost of the additional technologies, which would be paid by working people in their utility bills, against the number of fish, frogs and toads the technologies would save. Longstanding Supreme Court doctrine also provides that the federal courts are to defer to decisions of federal administrative agencies involving a reasonable interpretation of the governing law.
But the politically correct frogs won Sotomayor's empathy over the working people, as she cast aside this applicable law in ruling for Riverkeeper. The Supreme Court again reversed her on appeal, re-establishing the law.
In District of Columbia v. Heller, conservatives won a historic constitutional victory in 2008 with the Supreme Court ruling that the Second Amendment does, indeed, protect an individual right to keep and bear arms. But because the case arose out of D.C., it did not involve the issue of whether the Second Amendment applies to state restrictions on gun ownership, in addition to federal restrictions. That should not be much of an issue, though, since by now the Supreme Court has ruled that virtually every other provision of the Bill of Rights applies to the states, through the Due Process Clause of the 14th Amendment.
But when the issue came before Sotomayor, she displayed no empathy for lawful gun owners, ruling that alone among the Bill of Rights the Second Amendment somehow does not apply to the states. Even the ultraliberal Ninth Circuit has ruled the other way.
Obama's Problem, Our Problem
The real problem here is not Sotomayor's legal philosophy. She is well to the left of the liberal Justice David Souter she is replacing, especially on business issues, where Souter was often reasonable. She will be an utterly predictable, reliable, liberal/left vote on every issue to come before the court, including abortion. But she is just one vote out of 9, and won't be persuasive to others.
The real problem is that Sotomayor reflects Obama's legal philosophy. And she is the first indication that Obama, indeed, as I predicted last fall, is going to flood the federal courts with the most left-liberal, radical appointees ever, with no respect for the law, holding regard only for their personal moral views, which they are certain are superior to everyone else's. By the end of his term, he will have appointed a bloc of three such radicals to the Supreme Court.
Obama talks a lot about the glories of the rule of law when he is lambasting the Bush Administration, which has never been shown to have violated any law, despite the drumbeat from the fever swamps of the far left. But his own judicial philosophy and that of his appointees is going to replace the rule of law, fundamental to the basic success of America, with the assumed personal moral superiority of the liberal/left. That is going to contribute mightily to America's descent into a Third World banana republic, which is where Barack Obama is taking us, unless we burrow deep into the political grassroots, and stop him.