Mother Teresa nominated to Supreme Court

I was halfway listening to some media coverage of the Sotomayor nomination for Supreme Court Justice when I heard an insightful remark by one of the journalists.  My head had started to reel from the inordinate number of times the adjective “compelling” had been applied to “life story,” trying to figure out why they couldn’t throw in “inspiring” or “rags to riches” or some other words just for a little spice in the story.

Then I heard it.  Someone was speculating on how the Republicans would react to the nomination.  “The President could have nominated Mother Teresa and they would object.”  It flew past me quicker than I could get a name for the reporter, but I was stunned.  This reporter got it!

“Wow!” I thought.  “This guy really gets it!  Mother Teresa would be a horrible nomination for a Supreme Court Justice even though she has a truly compelling life story.”  Whether you are Mother Teresa or Sonja Sotomayor, “compelling life story” is not in the job description for Supreme Court Justice.

Nominating someone to any court in the US isn’t the same as nominating someone for Queen for a Day or sainthood.  “Compelling life story” is in the job description for those things.

Our Constitution, which defines our rights and our system of government, relies on judges that can put aside their personal prejudices and use the law to make decisions.  Judge Sotomayor discussed this in her now infamous 2001 Berkeley speech where she is talking of another female judge, Judge Cedarbaum: “She rightly points out that the perception of the differences between men and women is what led to many paternalistic laws and to the denial to women of the right to vote because we were described then ‘as not capable of reasoning or thinking logically’ but instead of ‘acting intuitively.’”  Right on, Sonja!  You are agreeing with someone who says that prejudice is bad and was used to repress people in the past.

She goes on to say, “Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.” Uh, oh, Sonja!  What’s this “nevertheless” bit?  You just slipped.

As the intellectuals in our upcoming generation of geniuses say, “Duh.”  Not exactly rocket science or sophisticated legal thinking.  The idea stated by Judge Cedarbaum is contained in Law 101 from Yale classes down to the prestigious Tennessee Valley Night School by Mail.  It’s one of the first things you learn in law school—justice is blind. If you have judges that don’t judge by the law, you do not have judges.  You simply have dictators, some of which may be benevolent, and some which may be tyrannical.  You have chaos.  If you are a judge you must transcend your personal prejudices, case closed.

There is a reason that the statue of the Lady standing outside the Court House or Courtroom in the funny clothes with the Scales of Justice has a blindfold.  She isn’t supposed to see the litigants.  She doesn’t see rich, poor, dark, light, blue eyes, brown eyes, cleft palate, kidney disease, or membership in the US House of Representatives.  She uses the scale not to weigh the clients, but the facts of the case.  Otherwise, the courts arrive at decisions that favor either the rich over the poor or vice versa.  Same rules for everyone.  Once the courts lean one way or the other, it only gets skewed more and more in that direction over time.  If it has gone too far in one direction, it doesn’t make it fair to overload the other side—the judge must always strive for the correct balance.

In our system, a wise old lady and a wise old man along with any first year law school student and anyone that wants to live in a free society will come up with the same conclusion, just as Sandra Day O’conner said.  A judge has to ditch the prejudices as much as he or she can.  While sometimes a prejudice may sneak in unawares, it is absolutely not permissible to consciously employ them to change the game or to somehow make things even out.

That’s where the really objectionable comment came into Judge Sotomayor speech.  She said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  In other words, “I’ll pay lip service to what the rules are—ignore prejudices—and  say that I’ll try.  But I don’t really believe it and I’m just really smarter.”  Or, prejudice is good if it is a Hispanic woman rather than an old white guy dealing.

So Judge Sotomayor, with the attention span of a 4 year old or the doublespeak of an Ivy League lawyer, went from prejudice is bad to prejudice is good.  This does not display the train of thought of a great mind.

Roe v Wade was decided by 8 old white guys and 1 old black guy (who look like my grandfathers, not old hippies or revolutionaries) by a 7 to 2 margin.  I wonder if a wise Latina woman would have concluded differently.

Maybe she could have come up with a better argument in making the decision.  The Justices had contorted the Constitution 8 years before Roe in a case called Griswold v Connecticut to give us a brand new Constitutional right to privacy that came out of part the Fourteenth Amendment to the Constitution that states, “. . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”   Guess what—it doesn’t say “privacy” anywhere.

Maybe they were speed reading and mistook a word—the Constitution does have the word deprive (from Latin privare meaning to rob).  Maybe they thought it said privacy (from the Latin privatus meaning apart from the state) when they wrote the opinion.  I mean, both were from Latin words—what a coincidence!  So, slam, bam, thank you ma’am and we had a brand new Constitutional right to privacy.  With this new right, it was a hop, skip, and a jump from the right to privacy to the right to an abortion in the Roe case, it being a matter of private nature.

I went to Law School for a year—loved it, did well, but couldn’t make the concessions to my conscience that would be necessary to be a lawyer.  I was on board with trying to comply with the Judge requirement should I be a judge—ignore your personal preferences because you are not there to be King or God.  I truly agree with that, and could give it my all.  But lawyering . . . unappealing.

My Constitutional Law Professor had been a clerk for Justice Thurgood Marshall (although not at the time of Roe vs Wade).  When my professor talked about the decisions in Griswold and then in Roe, he explained the rationale, and then admitted that it was very contorted and weak, but, he concluded with a shrug of his shoulders, “It just seemed right.” (Emphasis his.)

As an aside, the stretched nature of legal rationale behind Roe vs Wade is exactly why people are afraid that it will be overturned.  If it had a solid basis in the Constitution or in Law, there would be no such fear.

Getting back to Judge Sotomayor, from her first weeks at Yale Law School, she knew what was necessary for judges to do to preserve the system, just as she knew that lawyers have to do to preserve the system.  However, the bulk of her Berkeley speech is about wanting to get more Hispanics involved in the Judiciary so that they could change the rules.  It was not about serving as a positive role model for young minorities to give them hope of participation in this great Constitutional system, or to contribute herself in a positive way to reinforce the ideals of this country—equal justice for all.

When it comes to compelling life story, which person’s story would be more compelling:  That of a person who overcame a disadvantaged background who grew up to be a respected, contributing member of society who did not hold a grudge, or that of a person who overcame a disadvantaged background who grew up to be a respected, contributing member of society who was still seething inside from the unfairness of his or her beginnings?  The first kind of person is truly remarkable.  The second kind of person is far more common.

This bring us to another legal word:  Recuse, meaning to disqualify or seek to disqualify from participation in a decision on grounds such as prejudice or personal involvement.  If the Judge cannot get over thinking she’s smarter than a bunch of old white guys or old white ladies or anyone that isn’t a Latina, then she should “recuse” herself from the Judiciary and become a lawyer again.  That is an appropriate job for someone who feels that she cannot overcome her prejudices.

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Published in: on July 10, 2009 at 8:54 pm  Leave a Comment  
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