I’m really amazed at how easily educated professionals in the media, many whose job description includes impartiality and accuracy, forget the very basic lessons from civics class regarding the Constitution, the branches of government and the separation of powers. As far as that goes, I have to include the professionals, as our elected representative in the House and Senate, most of whom possess Doctorates of Jurisprudence and are members of at least one Bar Association, who yet forget all the Constitution nuts-and-bolts details they studied to get their degrees, but conveniently forget in alignment with the common sense folksiness of the prevailing zeitgeist. Making readers and voters feel you’re as dumb as, or at least no smarter than, they sells. Newpapers or votes, doesn’t matter. As long as the public feels you’re one of them, whether it’s real or an act, they can trust you and you can get away with a lot. And, they do.
In his confirmation hearings, Associate Justice Antonin Scalia, by all accounts the most conservative Constitutional literalist on the current court, described how his life experience informs and tempers his decisions. Even though his most telling quote is that the American Justice system isn’t about Justice, it’s about rendering a decision. Just the facts, ma’am. Yet, Justice Scalia professed inclusion of empathy. You’d have to look really closely, but the guy really does have a heart. I meant: REALLY closely. That’s okay, according to conservative ideology, because he’s the least likely among the Justices sitting the bench of the Court-of-Very-Last-Resort to grant any kind of right or privilege to groups or individuals not expressly delineated by the Founding Fathers in the Constitution of these here United States. The status quo shall be maintained. No sneaky new math, fluoridated water, implied rights to privacy or hanging chad surprises here. John Wayne, Chuck Heston, the Gipper and Pappa Bush can all rest easy.
But, then, an uppity, swarthy skinned woman of questionable Suma Cum Laude Ivy League credentials who claims heightened empathy for those who live in public housing, as she did, in an ethnic ghetto, as she did, and worked hard to transcend hardship, as she did, by saying essentially the same thing, however more elegantly, is a racist and an activist judge.
Unbelievable. These are well educated, professional prognosticators as well as members of the most elite professional societies in the land. But, as long as they act as ignorant of the minutiae of reality as the other ninety-eight percent of the population, they can get away with it. And, they do.
The difference between what Justice Scalia said and what Judge Sotomayor said is that one came from an Angry White Male putting forward his softest face, and the other came as a candid quote from a liberal minority jurist being spontaneous, open and honest. Oh! My! God! That can only be threatening to Truth, Justice, and the American Way. Nothing will ever be the same. Next thing we’ll have to grant all the protections of the Constitution to foreigners on American soil abroad. Activist judge!
Let’s make one thing completely clear: There Is No Such Thing As An Activist Judge.
It’s the mandate of the courts to interpret laws in the context of the supreme law of the land, whether in the jurisdiction of a state’s Constitution, or the federal Constitution. That is, does a law in question, or an issue pertaining in part to any law, abide by the protections of individuals, responsibilities of the general population and the myriad details set out by each jurisdiction’s codes of conduct and boundaries of rights. The court places each issue before it in the context of applicable constitutional constructs, and delineates how that issue measures up to those constructs. It’s called setting policy. It’s not making law, but interpreting scope and limiting departures from the limitations and protections described constitutionally. Setting those policies is the fundamental, crucial function of the courts. In other words, it’s the job of the courts to rein in deviant law established by the elected officials of an activist legislature, radical commission or department whose regulations carry the power of law.
The most basic limiting factor regarding how the courts are able to affect their work is regarding the content of what is brought before the bench. No judge can prop himself or herself up in the morning and start making pronouncements. A judge can’t ethically say anything about any legal issue out of the context of the courtroom and what is heard there, even on their own time. There has to be a complaint, presented in proper form in a forum of closely proscribed jurisdiction, in an adversarial context with two sides presenting arguments. The decision rendered is necessarily in the context of those arguments. It’s all very formal, the form and procedures hammered out for over two centuries of executing and refining those procedures.
One does not rise to the prominence of Supreme Court nominee by deviating from established traditional judicial procedures or rendering radical decisions out of context of the arguments presented in each and every case. Judges are mandated to contextualize law and how law effects individuals and society. It’s their job. It doesn’t make them activist, it makes them competent.
Anybody who tries to tell you differently has either ditched civics class or is lying.
©2009 Nathan Garcia All Rights Reserved