Hmm, seems to have been a while since I've insulted anyone, so . . .
Sonia Sotomayor. The President's first pick to fill a vacancy on the U.S. Supreme Court. Let the posturing begin . . .
To tell you the truth, I don't know that much about her. And if we're all going to be honest, who among you does? I suspect the answer to that is not very many, but I also suspect that little fact isn't going to stop half of you from portraying her as the greatest jurist since Solomon, and the other half of you from painting her as somewhere to the left of Lucifer.
Whereas, objectively, she is probably neither.
But that still doesn't make necessarily make her a good, or even desirable, choice for the Supreme Court.
As I said, I really don't know that much about her. What I do know, however, is that some of the things she's said makes me sit up and say "Um, what?" And that, it seems, in all the hullaballoo and pundits and politicians racing to stake out positions, no one is asking the right questions. Democrats, it appears, are tripping all over themselves to support her nomination because she was put forth by the President. Republicans, it appears, are tripping all over themselves to oppose her nomination because she was, well, put forth by the President.
And both sides are missing the mark, and in so doing, committing a grave disservice both to their responsibilities and to us.
Let's focus on the three things that I do know about her.
First, her decision in the New Hampshire fire-fighters case. That was the one where, on a promotion exam, the White firefighters outscored the Black firefighters and, as a result, the municipality in question decided to promote no one. In her appellate opinion, Sotomayor in effect managed to render no opinion while upholding the lower court ruling in favour of the municipality, which was to promote no one. Talk about side-stepping the issue . . .
Look, I'm not bashing fire-fighters here; my brother was a paramedic/fire-fighter, and I know a lot of fire-fighters. But this isn't rocket science, folks, it's a fire-fighter's exam. There aren't any "fuzzy" areas on the test. To really over-simplify things in the interests of saving space, something's going to burn, or it's not. Some flammible materials require something other than water to extinguish them, or they don't.
Beyond that - and I know this may be silly of me - I thought the whole point of such exams were to get the most-qualified people into those kinds of positions. I mean, if you're dealing with a toxic chemical fire, who do you want in charge? The person who actually knows what they're doing, or the person who may be a bit shakier on the whole thing but was put in charge in the interests of diversity?
Now, if the test itself was somehow biased . . . fix the test. If the test was fine as it was . . . encourage people to study harder. Seems simple enough. The fact that in this instance the minority candidates all scored lower on the test than the White candidates may have just been a statistical anamoly specific to that group of testees, or it may not have been. But by rendering an opinion that had no opinion, Sotomayor effectively dismissed the whole issue in favour of the status quo ante.
Bad time to have your building burn in New Hampshire . . .
Second, there is her opinion that the Bill of Rights (that is, the first ten Amendments to the Constitution) should be "open" for interpretation by the States. Put into English, that means that the individual States should be free to put whatever spin they want to onto the Bill of Rights. And that, frankly, is a big steaming load.
For everyone who has by now forgotten what they were taught in their High School civics classes, the Constitution is supposed to be the supreme law of the land. Meaning, in those instances where Federal and local law conflict, Federal law wins out. Furthermore, the Constitution itself is a document that spells out specifically which powers are delegated to the Federal Government; that is why there is that little clause in there which states that those powers not enummerated to the Federal Government are reserved to the States.
The Bill of Rights are a bit trickier. They are, for all intents and purposes, absolutes, and they are written that way. Which means, if we are to still believe that the Constitution trumps all else, any "law" that a State passes which conflicts with the Bill of Rights is Unconstitutional and has no force. They can not, therefore, be "reinterpreted." The only possible exception would be the First Amendment, which states that "Congress shall pass no law" regarding the establishment of a religion, or abridging freedom of speech or the "right of the people to peacefully assemble." But none of the other nine original Amendments contain that language. Rather, those are all couched in absolute, "this shall not be done" terms.
If you are going to accept the argument that the Bill of Rights is open to interpretation by the individual States, then you are also going to have to accept the argument that each State can expand, curtail or eliminate the rights enummerated by those Amendments as they see fit. Which means that you're going to have to accept the idea that Utah could establish Mormonism as the State religion, or that Wyoming could eliminate free speech within its borders, or that Missouri could do away with the concept of due process because it's such a bothersome little detail.
Is that really a good idea?
Third, there is her statement that "Policy is made at the Appellate Court." Well, no, it's not. Granted, that's a somewhat vague statement, since as a practical matter court decisions wind up being policy through the mechanism of precedent, but it is the very vagueness of the statement that should cause us to examine it closely.
In the broader sense, courts are not there to make policy. There is already an arm of Government in place to do that: it's called the "Legislature." On the Federal level, that body is called Congress. Which is why we go through the whole process of electing Representatives and Senators, those folks who are charged by the Constitution with passing laws and making policies in our names. If you don't like the laws and policies those people are passing, then don't re-elect them, elect someone else . . . but that's a different rant entirely. It would also require us all to get off our collective butts and actually take the time to vote, but we all have our crosses to bear.
In any event, courts are there to interpret the law, and do so based on precedent. They are also there to make sure that nothing the legislative or executive arms of Government do is Unconstitutional - though, really, that review is something you won't find anywhere in the Constitution. Frankly, it's a good idea, and I'm glad we have it, but judicial review is a concept that Chief Justice Marshall invented out of whole cloth. Be that as it may, what the courts aren't there to do is make policy. Look at the language in the Constitution that creates the Supreme Court, which states that it will have the power "to hear cases of equity and law." That clause also empowers the Supreme Court to create lesser courts - that's where the Federal circuit courts come from, for example - but nowhere does it grant the court the power to make policy.
Thus, to argue that the Supreme Court, or any other court, for that matter - are or should be policy-making bodies betrays a serious misunderstanding of what courts are for, and of the powers delegated to the courts by the Constitution. Nor is that a Left/Right statement; it is equally unacceptable whoever is using a court as an activist stage. The framers of the Constitution were pretty explicit in their desire that policy-making powers were the preserve of those who were elected by the people. It is a dangerous thing, I think, to allow those powers to be exercised by people who are not only appointed, but appointed to their positions for life.
Those, I think, are the questions that should be asked. Not only of Sonia Sotomayor, but of anyone who is nominated to such a position. They are the questions that really matter, and which should concern all of us. I am, however, pretty confident that they are also the questions that won't be asked, precisely because they are substantive and make for really bad sound bites.
Ah, well, you get what you pay for, I guess.
Sonia Sotomayor. The President's first pick to fill a vacancy on the U.S. Supreme Court. Let the posturing begin . . .
To tell you the truth, I don't know that much about her. And if we're all going to be honest, who among you does? I suspect the answer to that is not very many, but I also suspect that little fact isn't going to stop half of you from portraying her as the greatest jurist since Solomon, and the other half of you from painting her as somewhere to the left of Lucifer.
Whereas, objectively, she is probably neither.
But that still doesn't make necessarily make her a good, or even desirable, choice for the Supreme Court.
As I said, I really don't know that much about her. What I do know, however, is that some of the things she's said makes me sit up and say "Um, what?" And that, it seems, in all the hullaballoo and pundits and politicians racing to stake out positions, no one is asking the right questions. Democrats, it appears, are tripping all over themselves to support her nomination because she was put forth by the President. Republicans, it appears, are tripping all over themselves to oppose her nomination because she was, well, put forth by the President.
And both sides are missing the mark, and in so doing, committing a grave disservice both to their responsibilities and to us.
Let's focus on the three things that I do know about her.
First, her decision in the New Hampshire fire-fighters case. That was the one where, on a promotion exam, the White firefighters outscored the Black firefighters and, as a result, the municipality in question decided to promote no one. In her appellate opinion, Sotomayor in effect managed to render no opinion while upholding the lower court ruling in favour of the municipality, which was to promote no one. Talk about side-stepping the issue . . .
Look, I'm not bashing fire-fighters here; my brother was a paramedic/fire-fighter, and I know a lot of fire-fighters. But this isn't rocket science, folks, it's a fire-fighter's exam. There aren't any "fuzzy" areas on the test. To really over-simplify things in the interests of saving space, something's going to burn, or it's not. Some flammible materials require something other than water to extinguish them, or they don't.
Beyond that - and I know this may be silly of me - I thought the whole point of such exams were to get the most-qualified people into those kinds of positions. I mean, if you're dealing with a toxic chemical fire, who do you want in charge? The person who actually knows what they're doing, or the person who may be a bit shakier on the whole thing but was put in charge in the interests of diversity?
Now, if the test itself was somehow biased . . . fix the test. If the test was fine as it was . . . encourage people to study harder. Seems simple enough. The fact that in this instance the minority candidates all scored lower on the test than the White candidates may have just been a statistical anamoly specific to that group of testees, or it may not have been. But by rendering an opinion that had no opinion, Sotomayor effectively dismissed the whole issue in favour of the status quo ante.
Bad time to have your building burn in New Hampshire . . .
Second, there is her opinion that the Bill of Rights (that is, the first ten Amendments to the Constitution) should be "open" for interpretation by the States. Put into English, that means that the individual States should be free to put whatever spin they want to onto the Bill of Rights. And that, frankly, is a big steaming load.
For everyone who has by now forgotten what they were taught in their High School civics classes, the Constitution is supposed to be the supreme law of the land. Meaning, in those instances where Federal and local law conflict, Federal law wins out. Furthermore, the Constitution itself is a document that spells out specifically which powers are delegated to the Federal Government; that is why there is that little clause in there which states that those powers not enummerated to the Federal Government are reserved to the States.
The Bill of Rights are a bit trickier. They are, for all intents and purposes, absolutes, and they are written that way. Which means, if we are to still believe that the Constitution trumps all else, any "law" that a State passes which conflicts with the Bill of Rights is Unconstitutional and has no force. They can not, therefore, be "reinterpreted." The only possible exception would be the First Amendment, which states that "Congress shall pass no law" regarding the establishment of a religion, or abridging freedom of speech or the "right of the people to peacefully assemble." But none of the other nine original Amendments contain that language. Rather, those are all couched in absolute, "this shall not be done" terms.
If you are going to accept the argument that the Bill of Rights is open to interpretation by the individual States, then you are also going to have to accept the argument that each State can expand, curtail or eliminate the rights enummerated by those Amendments as they see fit. Which means that you're going to have to accept the idea that Utah could establish Mormonism as the State religion, or that Wyoming could eliminate free speech within its borders, or that Missouri could do away with the concept of due process because it's such a bothersome little detail.
Is that really a good idea?
Third, there is her statement that "Policy is made at the Appellate Court." Well, no, it's not. Granted, that's a somewhat vague statement, since as a practical matter court decisions wind up being policy through the mechanism of precedent, but it is the very vagueness of the statement that should cause us to examine it closely.
In the broader sense, courts are not there to make policy. There is already an arm of Government in place to do that: it's called the "Legislature." On the Federal level, that body is called Congress. Which is why we go through the whole process of electing Representatives and Senators, those folks who are charged by the Constitution with passing laws and making policies in our names. If you don't like the laws and policies those people are passing, then don't re-elect them, elect someone else . . . but that's a different rant entirely. It would also require us all to get off our collective butts and actually take the time to vote, but we all have our crosses to bear.
In any event, courts are there to interpret the law, and do so based on precedent. They are also there to make sure that nothing the legislative or executive arms of Government do is Unconstitutional - though, really, that review is something you won't find anywhere in the Constitution. Frankly, it's a good idea, and I'm glad we have it, but judicial review is a concept that Chief Justice Marshall invented out of whole cloth. Be that as it may, what the courts aren't there to do is make policy. Look at the language in the Constitution that creates the Supreme Court, which states that it will have the power "to hear cases of equity and law." That clause also empowers the Supreme Court to create lesser courts - that's where the Federal circuit courts come from, for example - but nowhere does it grant the court the power to make policy.
Thus, to argue that the Supreme Court, or any other court, for that matter - are or should be policy-making bodies betrays a serious misunderstanding of what courts are for, and of the powers delegated to the courts by the Constitution. Nor is that a Left/Right statement; it is equally unacceptable whoever is using a court as an activist stage. The framers of the Constitution were pretty explicit in their desire that policy-making powers were the preserve of those who were elected by the people. It is a dangerous thing, I think, to allow those powers to be exercised by people who are not only appointed, but appointed to their positions for life.
Those, I think, are the questions that should be asked. Not only of Sonia Sotomayor, but of anyone who is nominated to such a position. They are the questions that really matter, and which should concern all of us. I am, however, pretty confident that they are also the questions that won't be asked, precisely because they are substantive and make for really bad sound bites.
Ah, well, you get what you pay for, I guess.
