Section 2 of Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
A few days ago President Obama nominated Sonia Sotomayor as the next Supreme Court Justice, and the onslaught of criticism and support of Obama’s choice from Conservatives and Liberals went into full force. No matter what you think about Sonia’s “life story” or the confidence you may have in her judicial ability, the fact of the matter is that nominations of consequence must be adjudicated objectively and in light of the job’s purpose and intent of the position.
The best way to objectively adjudicate any Supreme Court Justice nominee (or any government figure) is to do so in light of the oath they must take before the execution of that particular office. Consider the oath every Supreme Court Justice must take according to Title 28, Chapter I, Part 453 of the United States Code:
“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.”
If Sonia is approved then she must promise the American people for her tenure that she will view her cases through the filter of the Constitution. I have three concerns why I think she has no desire to do so. The concern of inequality and racism, the concern of deconstruction and the concern for Judicial globalization.
Deconstruction:
Deconstruction is the idea created by Jacques Derrida that a reader cannot properly interpret any text written by deceased or living authors. Deconstruction applied to the Constitution means that it would be impossible to understand or properly interpret the original intent of the Amendments within the Constitution. As such, interpretation of the Constitution would then be determined in light of the reader’s life context without regard why the Amendments were written in the first place.
Sotomayor echos this idea when she states that judicial interpretation is only a “perspective” and that any idea of neutrality or” impartiality to the law is only an aspiration.” Therefore, when Sotomayor reviews a case she will decide the context and meaning of the Constitution based on her perspective on the situation and not with the perspective of the Constitutions original intent. Therefore, when the subject of abortion, gay marriage or any “right to . . .” question comes before the court she may or may not decide with the Constitution in mind. As a result, interpretation of the Constitution and the rights granted to the American Citizen may or may not be determined by the fickle feelings of the Justice.
So what does, “under the Constitution” in the oath mean if the original intent cannot be known? If deconstruction is correct, then should we ignore the plain meaning of Section 2, Article III when it introduces the existence of a Supreme Court? Should the plain meaning of the existence of a President and the three branches of government be accepted? As you can read, there is no stopping the silliness if one espouses deconstruction. If there are no boundaries apart from the boundaries of original intent, then what stops the Justices from questioning the validity of the entire Constitution itself?
Sotomayor has made it more than clear that original intent and proper interpretation of the Constitution can never be known and only exists in the eyes of the reader. Deconstruction is a nice academic theory to ruminate at the cost of $33,696 in the halls of the Harvard Lit Department. However, questioning the existance of the American citizens’ rights is quite a different subject all together.
Inequality & Racism:
According to Wikipedia, Racism
“is the belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority [or inferiority mine] of a particular race”
With that in mind, here are two of Sotomayor’s statements from the 2001 lecture she gave at UC Berkeley Law School for you to consider:
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.
For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach.
Sotomayor obviously adheres to the view that true wisdom and enlightenment are intrinsic to those who are not only in poverty generally but specifically those who are a minority and poor. But it doesn’t stop there. She believes that your judicial views determine your enlightenment as well. Consider that she described Clarence Thomas’ judicial views as representing only “a part but not the whole of African-American thought on many subjects.” If it is poverty and a nonwhite race that brings a person true wisdom and enlightenment then why does Thomas only represent “part of African-American thought” while Sotomayer represents all Latina women? (She didn’t say this specifically, but nor did she qualify her wisdom as she did Thomas’) Why wouldn’t Clarence be enlightened when he grew up in abject poverty in a single parent home in the segregated south? The only difference between Sotomayor and Clarence is the fact that he holds an originalist view of the Constitution. All I can gather is that he does not espouse the same view as she, and thus he must not be as wise and enlightened. But wait, the correlation between race, poverty and wisdom is incomplete if left here. It is assumed that when Sotomayer speaks of minorities and women she means, “all minorities and women who are poor and have not had the same opportunities as rich white men are more wise.” But she never says poor or implies a specific economic demographic. Sotomayer assumes that minorities and women are de facto oppressed no matter their economic demographic. If this were not the case, then she would have addressed the differences in the wisdom of poor white males verses the wisdom of rich minorities. In short, she believes that there is an intrinsic difference within the DNA and mental capacities of minorities and white men and thus should have the law applied to them differently because they are different.
The oath explicitly states that Sotomayor will “administer justice without respect to persons, and do equal right to the poor and to the rich.” I don’t think that Sotomayer can objectively administer and interpret the law in such a way that protects the original intent of the Constitution and thus protect the original intent of the Constitution’s rights of man.
I do not have enough time to go to the “logical end” of such an ideology, but let me leave you with a few questions to ponder:
- If the white man becomes the minority will he then be more wise than the previous minorities?
- Does the DNA that makes the minority and woman wise the same DNA that causes them to be oppressed?
- Was it a wise decision for white male Supreme court justices to give rights to minorities?
- If there is a correlation between being a minority and wisdom, then why is there a disproportionate numbers of “wise” men in prison?
Judicial Activism
Judicial activism “is a philosophy advocating that judges should reach beyond the United States Constitution to achieve results that are consistent with contemporary conditions and values.” In short, the judge is attempting to advocate and create new laws or policies that were never intended by the signers of the Constitution for the benefit of their own conscience. As such, meanings of words, original intent, and the limits of government and rights of citizens that are enumerated in the Constitution are at the sole discretion of the Supreme Court Justices’ world view. Since Sotomayor’s nomination, she has not stated that she was wrong or misguided in the tenor of her 2001 lecture. Therefore, we can only deduce that she adheres to the view that races are de facto unequal and should be compensated for their loss with empathy. In other words, the judge is the middle man that protects minorites and women from a law created by white men that is determined to oppress them.
There is nothing wrong with addressing race and ethnicity within the public sector, and specifically, within the judicial system. The judicial system was set up by our founding fathers to help protect the rights of all American citizens. However, just as merits and not race determine what astronauts fly aboard the shuttle, so should the best and most qualified persons don the Supreme Court Robe. If it is the role of the Supreme Court Justice to protect the rights of the American citizen in light of the Constitution, then wouldn’t it be prudent to have those who view it as true and reliable?
WHAT SAY YOU?
UPDATE: CQ: Sotomayor repeatedly made “wise woman”&”wise Latina” remarks in speeches
UPDATE: Newt: Sorry about the “racist” allegation
UPDATE: Sotomayor member of La Raza for six years
{ 1 comment… read it below or add one }
I disagree on a few of your points, but particularly the first one. Before I start – my perspective is a dedicated moderate and non-partisan; that is, I try hard not to come to my conclusion first and don’t base, for example, my constitutional views on whether or not it favors my preferred policy. I have no opinion on Sotomayor as of yet and certainly not going to base it on the first few news story, which can’t possibly give you an even remotely accurate view of a candidate.
Sotomayor did not say she would not try to apply the meaning of the constitution as written. Just because someone recognizes that judges bring their experiences to the table does not mean she will be less able to have an opinion free of biases. I would much rather have a judge on the bench who recognizes that they have biases, as we all do, than one who does not. I think if you polled the judges on appellate courts, they would all admit that they are human and have biases. If it wasn’t true, why is it that so often judges on both the left and the right come to constitutional conclusions which just happen to favor their policy preferences?
Second, while in my view, Derrida is most certainly correct, that doesn’t mean on many sections of the constitution, we are close enough in time and history that we can reasonably well understand what the forefathers meant. Not always, but no reasonable judge expects that they can. The second amendment is probably an example of the worst of the constitution in terms of unclear writing and our inability to really understand it. However, the set up of the three branches is fairly well understood by modern Americans and it is partially why we seem able to have peaceful succession.
I do have some qualms about her statement concerning Latinas, but will wait until I hear what she has to say about it before I make my opinion.
I’ll leave it at that because I don’t want to harangue. I