Thursday, May 28, 2009

Weighing In: Today’s Two Biggest Legal Controversies, Unpacked and Put Away Neatly

As a card-carrying (albeit technically inactive) legal geeknerd, I am delighted whenever issues of jurisprudence wind up atop the newcasts.  This delight, though, is typically tempered by my recognition that the public at large is either being misinformed or underinformed by those newscasts. 

As Blogvar, God of Blog, has seen fit to bestow upon me this stentorian organ of communication with which to clarify the minds of humankind (that is, when I’m not using it for jokes about poop or pretty pictures of rust stains, or on a good day, both), I take up again today the mantle of legal righteousness - and leftousness as well.  There are two issues in the public eye these days that demand my unique wonkish perspective, and I’ma gonna clarificate them for y’all here and now.  Speaking law-wise, of course. 

Righteousness: Left-leaning readers may share my ongoing disappointment with the voters of this my once-golden-now-pyrite state for denying the sacrament of state-sanctioned marriage to same-sex couples.  Many of us think that mutual commitment between consenting adults is all it should take, but a majority of CA voters disagreed last November when we elected a man as president who at one time would have been forbidden from cohabitation with a whitewoman, but at the same time rejected the vows of loving union professed by thousands of G-L couples by enacting Proposition 8. 

I am not going to argue the wisdom - or lack thereof - of that result.  The voters spoke; the legislature and the courts, by constitutional mandate, must listen.  The CASC just reaffirmed that vote, and the nation - a nation increasingly moving toward legal recognition of the marriages prejudiced by Prop 8 - has renewed its outrage.  Didn’t the court have an obligation to recognize marriage as a fundamental right, and its denial to same-sex couples as a base violation of essential constitutional liberties?  Weren’t they just reaffirming bigotry when they let the will of the voters stand? 

Well, yes, that seems so.  But let’s keep in mind what the Cal Supremes were charged with doing: ensuring that the election was fair and constitutional.  There is not yet any federal constitutional protection for gay marriage, so the California constitution, which also provides far-reaching civil rights, controlled these deliberations.  Since Prop 8 was a referendum, it represents the most compelling form of democratic statement - the standards for overturning the direct statement of the will of the people is much higher than for a mere legislative enactment.  When it comes to restricting what is widely seen as a fundamental civil right - the right to marry (which is so recognized by the USSC) - the issue is whether the referendum creates new rights or restrictions, or just changes existing ones.  A referendum that imposed racial or religious restrictions on marriage, for example, would be considered completely new, since it’s been a very long time since any such restrictions had been in place.  A referendum that gave children the right to vote, similarly, creates a new right - not just a change or expansion of existing rights. 

But restrictions on gay marriage are not new.  It’s not like L-G couples have historically enjoyed the constitutional right to marry.  Though it’s a sad commentary on where we’ve been and how far we have or have not come, gay marriage has never been an enumerated constitional right in this state - so a referendum restricting it did not constitute a change in constitutional rights sufficient to mandate court nullification of the voters’ will.  It’s one of those instances where an “activist” court might have stepped in to establish a new right in response to the blatant discrimination evinced by the voting public, but that would have violated the balance of power and led to a precedent for courts making rules whenever they thought people didn’t know what was good for them. 

I think people usually *do* know what’s good for them, but too often don’t vote for it.  The ongoing brouhaha over this pathetic attempt to keep down the gai will lead inevitably to an expansion of acceptance of homosexuality, in marriage and all other social institutions.  But getting the court to exceed its own powers to achieve that end could only have backfired.  In my opinion, which on this blog reigns supreme, this was a very gutsy move by the Supremes - and one that hardly ends the battle, much less the war.  Lefties, listen: If you don’t like the way things are, fight for change.  Don’t ask a judge to do it for you. 

Leftousness: Sonia Sotomayor has been nominated for a seat on the USSC, and would be the third woman and first hispanic to be so seated (unless you count Cardozo, whose heritage was Portugese, possibly by way of spain via the converso exodus of the 15th century, but that’s sort of stretching things).  The right seems to be grasping for reasons to hate her.  I’m hearing “affirmative action baby,” “reverse racism,” and “leg looks like a potato in that photograph” (no, really, somebody said that).  The fear is that she’s going to use “empathy,” which is a buzzword for “forcing outcomes that satisfy her own prejudices regardless of facts.”

This doesn’t really jibe with her years working as a prosecutor or corporate attorney, but since she’s a latina it stands to reason that she’s got an agenda to ram down the throats of the hegemony.  The white man worked hard for centuries to achieve a place at the top of the food chain, and it’s a violation of the laws of nature - not to mention judicial ethics - to allow some entitlement queen to come in and make them treat others as well as they themselves have been treated for time immemorial.  She’s going to create a society distinguished by mandatory abortions, rampant public-school funding, and “reverse racism” as Rush Blimpass calls it.  (As some commentators note, racism is racism.  A white person who hates all people of color is a racist.  A jew who hates all arabs is a racist.  A latina who hates white people because they’re white is a racist.  “Reverse racism” implies the *opposite* of racism.  Does that mean that she loves all white people just because they’re white?  or is there a less nonsensical explanation for this inflammatory phrase?)

There’s not much in her opinions to support the anguished cries from the right that Sotomayor is likely to turn the USofA into a godless, socialist, color-driven state.  Most commentators I’ve read indicate that her writings from the bench have been pretty boring, frankly, but very much focused on the facts, the law, and the application of the former to the latter.  She’s avoided talking about historical sociology (the “Brandeis Brief” so despised by so many) or a vision for the future.  She’s all about the law, legal precedent, and the record on appeal.  Sexy?  No.  Substantial?  Like a nice baked potato - without chives.  So the angst has been focused on three primary objects of anxiety - empathy, appellate policy, and Ricci.  Let’s just debunk these, reveal them to be the hollow, vacuous nullities that they are, and move on with our lives.  Mmmmkay?

Obama referenced “empathy” as one of Sotomayor’s characteristics when he announced her nomination.  This is the same word that was used by George Bush (41) when he announced the nomination of Clarance Thomas.  If it’s code, it’s common code and already pre-approved by the right.  That they would latch onto it now indicates nothing more than that they have nothing else to complain about.  If we don’t want judges with empathy, what do we want?  Judges who don’t care? 

The rejoinder to that hypothetical question has been amply provided: we want judges who apply the Rule of Law.  Empathy leads one to ignore laws in favor of outcomes, and that’s an activist orientation that violates the balance of power and the rights of all Americans.  This is supported, ostensibly, by a comment Sotomayor made at a conference some years back, where she recognized that the Courts of Appeals create policy, and by other comments she’s made that her experience as a latina would, she hopes, allow her to reach better decisions than a white man who hasn’t had those experiences.  Let’s note first off that the assertion that appellate courts make policy is not controversial - it’s well-established.  The “rule of law” is not as obvious as some might wish it were.  If it were, judges would be able to enter facts into a computer program that would spit out legal conclusions for them.  In a sense, that’s the way that much European law and the Napoleonic Code works, but we have a different system, based on precedent and an accretive form legal evolution.  That’s why these appointments get congressional review.  Cases get to appellate courts because they pose tough questions that the law does not resolve in a totally obvious way, and there is always white space between the black letters of any law where interpretation and application can result in different kinds of results.  If any judge said that appellate courts did *not* make policy, I would seriously doubt that judge’s legal sophistication. 

As for the second comment, about using her experience to provide her with a more nuanced understanding of certain cases or situations, this is an assertion very similar to one made by Samuel Alito during his own confirmation hearings, for which he was lauded - that his immigrant grandfather’s experience would sensitize him to certain issues coming before the court.  But more importantly, it’s critical that Sotomayor’s statement be placed in context - a condition which many conservative Chickens Little find tragically anathema.  Sotomayor did not say that her experience would prejudice her in favor of the underdog, or the immigrant, or the masses yearning to breathe free, or any of that.  She spoke of perspective and prejudice very specifically and intentionally.  She said that she understands prejudice and perspective in a unique and conscious way, more so than most white hegemonists who fail to recognize the bias built into almost every level of the legal system.  Sotomayor said that her experience makes her aware of when she’s reacting to circumstances rather than to legal principles, and *that* makes her a better judge.  And the proof of that pudding is Frank Ricci.

The Ricci case is the biggie in this analysis because Sotomayor was on the three-judge panel that decided not to force New Haven to promote an unquestionably-qualified applicant for promotion, when the promotion test produced racially-disproportionate results.  Ricci worked his ass off to score well, putting in significant time and money of his own to win a captain’s rank.  Why shouldn’t that effort be rewarded?  Conservatives claim that the failure to do so, in favor of tossing out results that disfavored certain ethnic groups, is evidence of a race-based, affirmative-action policy that denies Americans the fruits of their labors and the entitlements they have earned.  To which the 2nd Circuit Court of Appeals panel, Sotomayor included, said, “are you asking me to *empathize* with this man?  I do.  He worked hard and I feel for him.  But that’s not the issue.”

Here’s the issue: Federal law dictates that the city has to throw out civil employment tests that result in discriminatory impact, and that’s what happened.  The city was in a no-win situation, since they knew they’d get sued no matter which way they decided… but to their credit, they chose to take on the lawsuit that FEDERAL LAW SAID THEY MUST FIGHT AND WIN.  Even conservative blogs recognize that 2nd Circuit precedent obliges the court to uphold the district court’s ruling because in the 2nd Circuit, efforts to address hiring disparities are never treated as discrimination.  Had Sotomayor ruled in favor of this very sympathetic plaintiff, she’d be doing so in violation of law and precedent.  That’s activism, people.  Don’t we want to avoid that? 

The opinion (with dissents) upholding the decision not to overturn 2nd Circuit precedent is available for your reading pleasure here.  I’ve scanned through it a few times and I’m satisfied that the court fully explored the issues, took notice of the writ of cert that is sending the question to the USSC, and satisfied its obligation to engage in a robust analysis of both the facts, the controlling law, and the ethical significance of precedent.  They could have acted to change that precedent but this case did not support that kind of activism. 

The Ricci case, therefore, establishes Sotomayor as a judge who can rule on the law despite heartwrenching facts and powerful opposing equities.  That’s the kind of sophistication that I think we need on the court.  Every case has equities on both sides, and equities invoke empathies.  We need a judge who recognizes this dynamic, not one who thinks the answer to any question is in a book *unless* you personally identify with the other guy.  It is hypocritical for the right to say that they’re not empathic - they empathize with those seeking religious freedoms and public support for their parochial schools through vouchers; they empathized with Terry Schiavo’s parents when her legally-empowered husband sought to fulfill her expressed wishes not to vegetate; they empathize with government officials whose desire to ensure national security drove them to violate civil liberties and rules of engagement. 

After eight years of a blatantly activist agenda in the legislature and in the courts, “conservatives” are better denominated “reactionaries” and “zealots.” And if you understand why I say this, you understand why they’re actually so nervous about the nomination of a clear-eyed, unbiased judge.  She’s not going to let them get away with it anymore.  If the price of good jurisprudence is that the left is subjected to the same kind of piercing analysis and dispassionate justice as the right, well, that’s okay with me.  Now go on with your bad selves.  Wonknerd out.