"The task of a judge is not to make the law — it is to apply the law".
So said Judge Sonia Sotomayor on Monday, the first day of the US Senate hearings that have this week been exploring her background and judicial philosophy. In case you hadn’t heard, Sotomayor is big news: Barack Obama’s first nominee for the US Supreme Court, and potentially the first Hispanic Justice (or second, if you count Benjamin Cardozo, which many don’t). The Supreme Court vacancy arose earlier this year when Justice David Souter, considered part of the liberal wing of the nine-member Court, announced he would retire on 29 June 2009. Now the confirmation circus has begun.
The intensity of the politicking around the process, and the seriousness of the process itself, are only to be expected. Supreme Court Justices are — barring resignation, retirement or conviction — appointed for life. They are the highest judicial body in the United States, with the power to interpret the most sacred of American documents, the US Constitution. The Court has been involved in decisions — on abortion, racial segregation, and the death penalty — that have affected the everyday lives of millions of Americans, and of others beyond the US. (Remember that small disagreement concerning the outcome of the Presidential election in 2000? The Supreme Court was the final arbitrator, and we all know how that went.) No wonder nominees are subjected to such scrutiny, and that process is broadcast around the country and the world.
Sotomayor would therefore no doubt have felt the need to clearly declare her judicial impartiality in any event, but she has arrived at this nomination with the extra burden of a reputation as a judicial wild card. This reputation goes some way to explaining the specific intensity surrounding her nomination to the Court. Many Americans are very frightened of judicial activism — the deciding of cases on ideological grounds, rather than simply interpreting the law as written — at such a high level. The fact that Sotomayor is a woman, Hispanic (she was born in New York to Puerto Rican parents) and considered liberal in her politics does not help matters.
The "controversial" statement that is most cited as evidence of her activist nature is part of a much larger lecture Sotomayor gave in 2001 at the University of California, Berkeley, School of law, entitled "A Latina Judge’s Voice". In her lecture, Sotomayor discussed the influence of gender and national identity on judges, and, responding to a comment attributed to Justice Coyle (that a wise old man and a wise old woman will reach the same conclusion in deciding cases) she said:
"I am … not so sure that I agree with the statement. First, as Professor Martha Minow has noted, there can never be a universal definition of wise. Second, 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."
This statement has enraged many Republicans, who generally hold that a Supreme Court Justice should not be "ideological" in their interpretation of the law. They believe the statement, along with a controversial decision Sotomayor made in 2003 while sitting on the 2nd Circuit Court of Appeals, exposes her as judicially dangerous.
The 2003 case, Ricci v DeStefano, concerned a written test used by the City of New Haven for assessing promotions among the City’s firefighters. African and Hispanic Americans suggested that the test was unrelated to the job and therefore its effect on minority groups (who tended to fail the test) made it unjustifiable. The city withdrew the test and a number of firefighters who had succeeded in the test sued. Sotomayor heard the case on appeal, and the decision to reject their suit was upheld. The case then went to the Supreme Court which recently overturned the decision in favour of the pro-test firefighters. This news has provided more evidence to those who say that Sotomayor is a judge who lets her personal and political opinions get in the way of the proper administration of the law.
This specific storm surrounding Sotomayor is representative of a more general debate, one that has important implications beyond the jurisdiction of the US. That question is: how do we view the law, and what do we think it should be? Should judges simply invoke the law as written, or should they interpret it, with all the potential for personal and political bias which that could involve?
It is right that the written law should be clear, and that those who would use the law should have some clarity about expectations. Judicial decision-making should not emerge from a "what-the-judge-had-for-breakfast" type of jurisprudence. However, to deny the human element in judicial activity is to view that practice as a science and the written law as an immanently moral and rational code, which simply requires invocation, like a prayer. Law, and legal activity, are none of these things, and nor should they be.
The law is written down so we can view the generality of it, and have some degree of certainty in our day-to-day lives, but to slavishly adhere to the written word in all cases is a dogmatism that can have serious implications for desirable decision-making. To discount the effect of our humanity in the decision-making process — to want to discount it — is to deny our humanity. "Jus est ars boni et aequi" said the Roman jurist Celsus: law is the art of the good and the right — that is, the art of equity. Solomon prayed for an understanding heart to judge his people, rather than simply the knowledge of the law. Equity is this poetic mode of thinking, requiring a large degree of empathy and sensitivity, as well as logic.
Sotomayor makes her statements about complete "fidelity to the law" because that is what the Senate confirmation circus requires her to say until it finishes, probably by this weekend. Her real judicial attitude, however — based on her controversial statement — would seem to be an equitable one. She is simply suggesting that to have experience of life as lived by Hispanics in the US today — or indeed of life as lived by any minority group — will lead to readings of the law and decisions which accommodate the context of that life as lived. This is a truly equitable perspective on decision-making: a respect for empathy and common sense. That is an admirable judicial standpoint, and something which all people, irrespective of nationality, should hold dear.
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