Monday, July 13, 2009

Sotomayor and the Rule of Law

On my way to a meeting this afternoon, I had the chance to listen to an NPR interview with Senator Grassley about Judge Sotomayor & found the sentiment he presented to be troubling.

I should never be surprised but hypocrisy does rile me up a bit.

Grassley made the charge I've heard several times from conservatives: judges should never legislate from the bench. Now that is a fair statement. I agree with it. In fact, I don't think any reasonable person would disagree with it. It is the job of the legislators to make laws & the job of the courts to interpret & apply, but never change laws by simply re-interpreting them. Obviously, that doesn't mean courts shouldn't apply laws in newer ways as society evolves, e.g., the 4th Amendment not only says the gov't can't search my home without a warrant, but the gov't cannot snatch my emails from cyberspace or listen to my phone calls without a warrant either.

Sen. Grassley, evidently, agrees with me that judges should interpret the law, not make laws. He said to NPR:

"...I'm concerned that judging based on empathy is really just legislating from the bench."


"A legislator is to pass laws, because if you don't like the laws, you can vote them out of office. But in the case of a judge, they have lifetime appointments. You can't vote them out of office. So under our checks and balances system of government, it's very important that judges judge — in other words, interpret the law — and that legislators make law," he says.

Thus, I was a bit confused when my fellow conservatives were so elated when the NJ Firefighters case in which Sotomayor wrote for the majority was overturned by the Supreme Court. The case dealt with 18 white firefighters who scored high on a promotions exam, but where not given promotion based on that test since no black firefighters passed the particular exam.

Not fair! say most of my fellow conservatives. Agree. It is not fair. The problem is, it is what the law has said since the Civil Rights Act was passed in 1964. The rules were interpreted & the courts always ruled, that if a test was not passed by enough minority participants, it was assumed the test was unfair. That's was it. 'Nuff said. It was simply a given that there needed to be a Do Over.

The rational behind this interpretation was sound: if this was not the way the law was going to be applied, then it would be fairly easy to design a test to intentionally exclude minorities who, in1965, were generally much less educated due to intentional discrimination. Thus, it was interpreted that there had to be an automatic re-test because proving a city intentionally designed a test to discriminate would be difficult, & proving a test was internally flawed is even harder. So the law was interpreted & applied that if minorities didn't pass the test, there had to be a re-test.

And that is precisely how Sotomayor ruled in the NJ firefighter case. It might not be fair in 2009 but that is the law.

Then the hypocrisy comes to bat: the US Supreme Court disregarded the law as written, applied & interpreted, & instead legislated from the bench a new law. It is no longer enough that for 45 years we've said the results are enough for a Do Over; now there has to be hard evidence to throw out the results.

Ok. I can see how that might be fair (maybe.) But isn't that the job of the legislators? Is that not doing the very thing the conservatives railed at the liberal judges for doing? If they want the law to say that test results are not enough to prompt a retest, shouldn't that be written into law instead of changing 45 years of established legal principle?

Sotomayor followed the law in her ruling. It was the conservative US Supreme Court that "legislated from the bench" this time.

1 comment:

Georgia Mountain Man said...

Unfortunately, the conservatives WANT their judges to legislate from the bench when there is a law they don't agree with.