With Sonia Sotomayor having taken her rightful place on the Supreme Court, we can get past, I hope, some of the ridiculous claims and statements made by her opponents. Also, it gives me an opportunity to tell a story I find interesting that is very relevant to the issue.
One of the arguments made by her opponents is her perceived liberal bias and the statement/belief that justices should be like umpires, calling balls and strikes. In this view, things are unconstitutional or not and there is a clear delineation that should be obviously apparent. Oh, if only it were so. People who make this claim are either being disingenuous or have no knowledge or experience with the courts. By the time something gets to the Supreme Court, it does so because the issues are not clear. I have personal experience with this.
Unfortunately, laws often are written either in a non-specific way, or may be specific but fail to anticipate how they will be used or abused in the future. As an example of the former, let's say that a law is written that says government shall establish regulations to do such and such and reasonable fees established to enforce the provisions of the law. Further, the law will say that fees or provisions shall be examined regularly and updated when warranted. What is a reasonable fee? How often is regular? If laws are written too specifically, then they will fail to deal with many future occurrences. If they are written broadly enough to cover future contingencies, they must be necessarily vague which means they will be open to interpretation.
I was a plaintiff in a case, which was ultimately thrown out because "it fell between the cracks." There was law and court decisions for many different classes of people, but I fell into a small class for which no precedent or specific law applied. The judge could have ruled in my favor by deciding to apply the law in one way, but chose to apply it in another. Later, in a case which I read about in the papers in a similar situation, the same judge ruled in favor of some plaintiffs and allowed the case to go to trial. There was no clear choice in this matter, and this situation occurs frequently.
In another instance, I wrote a law for the State of California. By way of background, there was a petition taken to the City of San Diego for an initiative ballot measure to revise the City's Charter. The petition was not certified because it did not have enough signatures as established by the City's Election Code. However, a judge ruled that the City had to follow the State Elections code for this particular type of initiative. So, I wrote a change to State law so that future petitions would be consistent with our past requirements, which everyone agreed were more sensible than the State requirement. The law was reviewed by the City Attorney's Office, a resolution supporting it passed the City Council. A local assemblyman, a lawyer who was later appointed to a judgeship, agreed to carry the bill for us. We worked closely with the Secretary of Stat's office and the attorneys in their Elections Division and they all reviewed and approved it. It sailed through both houses and was signed by the governor as a non-controversial item. I figured the case was closed. About six months after going into effect, I received phone calls from Oakland from two different people who had found out that I was the original author. They both asked me what my intent was for an election situation which had nothing to do with city charter initiatives. I went back and re-read the new law. Sure enough, the issue they were asking about could be applied to the law which we had so narrowly crafted to apply to another very specific issue. Had I gone to court and been asked how the law should have been applied in the case the people from Oakland were interested in, I would have had no clue as to how to answer. I wouldn't have wanted to be the judge who decided how that law applied.
The point should be obvious. You can't just be an umpire, decisions/solutions are not clear cut and judicial decisions will of necessity be influenced, if not determined, by a judge's past experiences, leanings, and biases. To say otherwise is pure sophistry.
Another attack on Sotomayor was to attack Obama's statement that he wanted a judge with empathy. I guess it is better to have a judge with no empathy? Kudos to L.A. Times columnist Michael Hiltzik (I think I'm spelling his name correctly). He brought to his readers' attention the Supreme Court case of Buck vs. Bell in which the Supreme Court ruled in favor of the State of Virginia for the forced sterilization of a woman who was judged mentally retarded by the State. No proof was ever presented to support that claim by the State. Had there been a woman on the court, might the court have ruled differently? Similarly, the forced relocation/internment of people of Japanese acestry during World War II led to Korematsu vs. U.S. which is arguably one of the worst Supreme Court decisions in history, right up there with Dred Scott and Plessy vs. Ferguson. Had there been a minority on the court, especially one with foreign born parents, might not a more enlightened viewpoint from that kind of justice led to a more just decision? One would hope so. Given the ambiguity one often finds in the law, I much prefer a judge with emnpathy. I know I wish I had had one in my case since I got royally screwed and wasn't even allowed to bring my case to trial despite a clear case of denial of due process.
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