May 27, 2009

‘Judicial Activism’? Should Sotomayor Go for Judicial Passivity?

Those of us who enjoy being pretentious are quoting Aristotle, who criticized the law as "Mind without reason".

Step aside Aristotle. Make way for Barack Obama. In announcing his nomination of Sonia Sotomayor for the Supreme Court, he borrowed from Oliver Wendell Holmes, to many the supreme Supreme Court Justice. Holmes contended “The life of the law has not been logic, it has been experience. It is vitally important that a justice know how the world works, and how ordinary people live.”

Judge Sotomayor's life as an "ordinary person" has certainly been extraordinary. From a childhood in Bronx public housing, she has risen through the elite ivory towers of the legal world. Barring a surprise, she will soon rise to the pinnacle. She is the choice of a man who has made a similar journey to the presidency. As a qualification, he argued, his selection should demonstrate a capacity for "empathy".

His political opponents, so desperate for traction, have been raising the alarms. "Empathy?" they bleat, "That's judicial activism!" 

For starters, just what do they mean by "judicial activism”? Should we prefer judicial passivity? Are they advocating a legal system that enforces a status quo, one that favors the wealthy who are able to manipulate the law for their benefit? Do they want continue the discriminations and oppressions that have held down everyone but their own privileged kind?

Come to think of it, that's apparently what they do want. They've even come up with a catchy name. They call themselves "originalists". As in "original intent". As in sticking to what the writers of the Constitution cast in 1787 concrete. Were the founding fathers not empathetic within their white male limitations? Did they did not ratify "judicial activism"? Then why did they add on the Bill of Rights? 

Why did the Marbury vs. Madison decision in 1803 lay the basis for a fluid, ever-changing interpretation of legal protections that has evolved from the days of slavery and subordination of women? Quoting Chief Justice John Marshall: "It is emphatically the province and duty of the Judicial Department to say what the law is". Now that’s judicial activism.

That cliché has been obsolete for more than 200 years. But it still resonates with those who are afraid of change, or so afraid of thinking on their own that they simply follow the lead of anyone who can raise their passions and fears with a simple-minded catch phrase, even though they have no earthly idea what it means. 

But hey, it's entertaining. Ever since the Robert Bork battle, we have been attracted to Senate confirmation hearings that are really personality contests and sound bite competitions. Already, the jousting has begun. While Latinos celebrate Judge Sotomayor's Puerto Rican heritage, conservatives are ready to pounce on her 2002 speech where she acknowledged that her rulings might be partially ". . . based on my gender and my Latina heritage".

How could that not be? How could any judge ignore his or her experience in forming an intellectual basis for any decision? He or she cannot. They should not. The law is not just concerned with maintaining order, it's also about providing a framework to realize our aspirations in a society filled with what the Constitution dedicated to serving "We the People . . ." The very fact that I refer to "he or she" and "him or her" reflects who how we have come. 

In the days and weeks ahead, we will learn a lot about Sonia Sotomayor. Some of the discussion will have substance.  Much of it will be empty demagoguery, in the spirit of those who used to cite the "States' Rights" argument to justify racial segregation. Put the judicial activism argument in the latter category. Aristotle might have called that "Mindlessness Without Reason".