A legal philosophy of judicial lawlessness — just the way Obama likes it.
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 stable….[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, society….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.
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