"He will put the sheep on his right and the goats on his left."
Matthew 25:33

Saturday, May 30, 2009

Blind Justice or Activism

Current controversy over the nomination of Judge Sotomayor for the US Supreme Court has focused on incendiary issues like racism and the KKK.  This is good theatre, but misses the main point.

There is only one important issue to be resolved in the upcoming confirmation hearings.

Will Judge Sotomayor honor the law as it is written or rely on some other standard?

If some other standard is to be used, what is it?  How will it be applied?  How will it be balanced against the law as written?  When will her "experience" or "empathy" demand a different outcome than that explicitly required by the law?

In the United States, we put a high value on the Rule of Law.  We put tremendous effort into the wording of laws.  We do lawmaking publicly and deliberately, because we presume that law is to be followed.  We write down our laws so that every citizen can be very clear about what they are.

To have a judge on the Supreme Court say that it is best to tilt her decisions in favor of her "experience" is to subordinate the written law to her preferred outcomes.  All who love justice should recoil at this because it relegates legislators to advisors in the application of law.

Judge Sotomayor should be vigorously opposed in the strongest terms if she insists on hedging her judicial oath by injecting her preferences into her decisions.

Both those on the left and the right have the same interest in this principle.  For every "liberal" judge interpreting the law with "empathy" is a "conservative" judge favoring expediency over process.  The solution is not to turn the courts into legislatures, with proper representation, but to insist that the courts honor the laws as written, leaving the legislatures - and the people - to make the policy decisions.

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