Wednesday, July 15, 2009

Wise Latina, Stupid Process

Every few years here in the United States, we go through the national trauma of selecting a new Supreme Court justice. The process works like this:

1. A sitting justice dies or retires.

2. The President considers potential replacements based on:

a. Judicial philosophy of possible nominees;

b. Gender balance of the court;

c. Racial balance of the court;

d. Special interest groups which haven't been placated lately;

e. Religious considerations;

f. Cost of linoleum in Fond du Lac;

g. - y. - Other socio-political considerations; and,

z. Legal qualifications of the nominee.

You can see all this at play in the ongoing soap opera over the nomination of judge Sonia Sotomayor to the Supreme Court.

No matter what anyone thinks, the selection process for Supreme Court justices is not designed to identify and nominate the most outstanding and well-qualified jurists. It's the legislative and judicial equivalent of making sausage - you toss all the social and political considerations into the hopper, let a few cranks have a turn, and out comes not the best, most qualified individual, but the one who is least offensive to the largest number of people with a vote.

It's all so predictable. Republicans will insist on a "strict constitutionalist" who will not "legislate from the bench." Democrats will insist on someone who understands the problems and concerns of average Americans. Every member of the Senate Judiciary Committee will bloviate at length for the benefit of his/her constituents, the nominee will give all the right answers, and then - after days of grueling grilling and political theater - a vote will be take under conditions of exhaustion. And then, either there's a new justice on the court, or the whole kabuki dance begins again.

This is stupid.

For the record, I think Judge Sotomayor is a very impressive jurist. I also think she shouldn't be on the Supreme Court. Consider her much-quoted and much-maligned comment that "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." Can you imagine the howls of outrage that would have arisen if a white male nominee had said, "I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a (insert minority here) who hasn't lived that life"? Be honest. You know it's true.

The comment was stupid. Even if you read Judge Sotomayor's comment in the context of the entire speech (which you can read here), it remains insensitive and in poor taste, and it plays directly into the hands of those who would object to her nomination simply because she's a woman or a Hispanic.

And consider the recurring, moronic canard about "activist judges legislating from the bench." I would suggest that judges legislate from the bench when spineless legislators won't legislate from the legislature. When Congress is too wrapped up in political considerations and too indebted to various special interests to write necessary laws, the courts step in. This allows Congress to have it both ways: they don't have to be on record as having taken politically unpopular positions, and they can blame someone else for doing what they were afraid to do.

Unless Judge Sotomayor shows up drunk for the hearings, or a video of her dancing topless while waving a Nazi flag appears on the Internet, she'll be confirmed to the Supreme Court. I just hope that she proves to be a wise jurist, regardless of her sex and ethnicity.

Have a good day. More thoughts tomorrow.



Leslie David said...

Yep, another judicial nomination bread and circus. Go Sonia!

allenwoodhaven said...

It is indeed a poor way to choose some of the most important positions in our government. I don't know what the solution is but there has to be a better way between public spectacle and smoke filled back room deals.

The current method doesn't even let us know what kind of a jurist we are really getting. Many a president has been upset that his pick didn't turn out to be what he thought. The silver lining though is that this can sometimes be good for the country.

Personally, I'd like to see people on the Supreme Court who are not currently judges or even lawyers. There is no requirement for that to my understanding; it is just current conventionality. Sound reasoning and excellent judgement would seem more useful. And a nonlawyer would probably shake up the system. That might be a very good thing.

And as has been widely circulated lately, the definition of an activist judge is someone who disagrees with you.

Debbie said...

Needless to say I am against activist judges on the Supreme Court. But my main reason for not liking this nominee is the ethnicity and sex issues. She raised it in her comments. I would prefer a judge who views all citizens as Americans, not Latino Americans, Native American, and women, equal in the eyes of the law with no hint of bigotry or bias so there is justice for all.

Anonymous said...

Nota Bene: it is true there is no legal requirement for a Supreme Court justice to be anything but a citizen of the United States. Having somebody with common sense would be a great leap forward.

Bilbo is at his most accurate when he points out that the reason for the current circus is that the legislative branch hasn't the courage to do its job and actually read, debate honestly, and then pass wise laws reflecting a national consensus, instead of doleing out our hard earned money to those whom the legislators hope to bribe so they can keep their jobs, regardless of how incompetent, venial, or dishonest our elected public servants may be. If I had the time to write a serious book about the current Congress I would title it "Profiles in Cowardice."

Eminence Grise

bandit said...

I agree to all that has been said here. The only consolation I can see is that Biden will not be in on the process this time. He never really asks a question, just rambles on and on and smiles when he says something he thinks is cute.

Mike said...

Maybe they should run for office like the other politicians. We know how well that works.

Wv: hydouz - A nap in a tree.

Twinkie said...

Actually, I relate to Judge Sotomayor a LOT so I see nothing wrong with her statement. If it's true, then own it!

I am a wise and Twinkilicious Latina woman with an ewey gewey richness and my experiences have more often than not helped me reach a better conclusion than a powder white donut or a vanilla-licious Zinger who hasn't lived my Hostess life!

SusieQ said...

I do not like what Sotomayor had to say about wise Latina women drawing better conclusions than white males. But I thought she was poised and polite during the hearings.

I believe she admitted that when the Justices share their views with each other and deliberate on something it is like a meeting of the minds in which one's views can be altered by another's views. The Justices help each other think. This suggests that she is open to listening to someone like Scalia.