« Stop Sonia Sotomayor | Main | Sonia Sotomayor Doesn't Understand "The Rule of Law" »
May 28, 2009
Rule of Law, Not the Rule of Lawyers
Over at National Review, former Assistant United States Attorney Andrew McCarthy explains why we must adhere to the rule of law, and not the rule of lawyers
It's not the rule of law, it's the rule of lawyers: That's the central message conveyed by Pres. Barack Obama's nomination of Sonia Sotomayor, a judge of the Second Circuit federal appeals court, to replace retiring Justice David Souter on the U.S. Supreme Court next October.Obama and the lawyers in his administration are fond of invoking the rule of law. Yet that golden standard stands on the conceit, honored more in the breach than in the observance, that "we are a nation of laws, not of men." It holds that there is an objective corpus of law -- of the community's reasoned consensus, shorn of passion, fear, or favor -- under which we've agreed to be governed and to which those chosen to represent us owe their fidelity. It's a nice ideal. Increasingly, though, our real governing standard is the one made infamous by the legendary litigator Roy Cohn: "Don't tell me what the law is. Tell me who the judge is."
Our ideal of judging was perhaps best explained by John Roberts during his 2005 confirmation hearings. The judge is like an umpire, Roberts mused. The umpire calls balls and strikes; he doesn't design or alter the rules of the game. That's how it's supposed to work. The judge's courtroom is the level playing field where even the visiting team can win if the law -- the objective law -- is on its side. Sure, the crowd and the local paper will root, root, root for the home team. The rules, however, don't have a rooting interest. Justice is blind. The umpire is there to see that justice is done -- not manufactured.
The president doesn't view the world that way. He wants the umpire to pick winners and losers, not simply to preside over a fair fight -- "fair," in this context, meaning a fight under rules agreed upon before the game gets started.
Bingo.
Meanwhile, over at TalkingPointsMemo, former Secretary of Labor (1993 - 1997) Robert Reich completely misses the point:
Although as an appellate judge she has sided with defendants, inmates, convicted felons, and environmentalists, she has also taken decidedly conservative stances. In 2002, she ruled against an abortion rights group that claimed the so-called "Mexico City Policy," prohibiting U.S. funding for foreign groups performing or supporting abortion services, violated their First Amendment rights. She reasoned that the government is "free to favor the anti-abortion position over the pro-choice position." In a 2004 case she ruled in favor of anti-abortion protesters who claimed a city had improperly trained police officers who allegedly used excessive force on them. And she has ruled against a number of minority plaintiffs in discrimination cases.And she has an impeccable upward-through-education-and-hard-work pedigree: She grew up in public housing in the Bronx, the daughter of a factory worker, and got a law degree from Yale.
The issue is not whether her rulings favored conservatives or liberals. The issue is whether she followed the law or not. Reich reveals his own view of the judiciary by his statements. He sees it in purely political terms, which is a disastrous view for the rule of law.
Further, while it may be personally inspiring that she worked upward from poverty, it makes absolutely no difference as to her qualifications for this or any other judgeship.
Posted by Tom at May 28, 2009 7:38 AM
Trackback Pings
TrackBack URL for this entry:
http://www.theredhunter.com/mt/refer.cgi/1360
Comments
What she decided in the Pitts. fireman case WAS following the law.If you disagree with it then change the law, don't expect a judge to make their own laws.
Posted by: Time at May 28, 2009 11:20 PM
Thank you again for stopping by, Time.
I certainly agree with you that if we don't like a law it should be changed in the legislature, and that judges should not make their own laws. Unfortunately, that is just what Sotomayor does.
As for the case you cite, I'm not an attorney and don't have time to study the opinion myself. However, Ed Whelan did, and I've come to trust his opinion on these matters:
In a press conference yesterday, White House press secretary Robert Gibbs tried to defend Judge Sonia Sotomayor’s outrageous shenanigans in the New Haven firefighters case (Ricci v. DeStefano):You can't criticize somebody for ruling based on adhering strictly and strongly to the precedent of Second Circuit, in the case of — in this case, of Hayden v. The County of Nassau, and Bushey v. The New York State Civil Service Commission.Gibbs’s brazen defense (which I’m told that White House lawyers are providing in an even bolder form on background) is quite a stretch and is at war with both highly respected Clinton appointee José Cabranes and Obama’s own Justice Department.
In his dissent from denial of rehearing en banc in Ricci, Judge Cabranes (joined by five other judges) states that the case “raises important questions of first impression in our Circuit—and indeed, in the nation—regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices.” He calls the district court’s opinion (which Sotomayor and her panel colleagues adopted wholesale) “path-breaking” and the questions on appeal “indisputably complex and far from well-settled.” He declares that the “core issue presented by this case—the scope of a municipal employer’s authority to disregard examination results based solely on the race of the successful applicants—is not addressed by any precedent of the Supreme Court or our Circuit.”
Further, in its brief in the pending Supreme Court case, President Obama’s Department of Justice argues that the unsigned per curiam opinion that Sotomayor joined—and, given her aggressive lead role at oral argument, probably authored—did not “adequately consider whether, viewing the evidence in the light most favorable to [the plaintiff firefighters], a genuine issue of fact remained whether [the City’s] claimed purpose to comply with Title VII was a pretext for intentional racial discrimination in violation of Title VII or the Equal Protection Clause.” On that ground, the Department of Justice argues that the Supreme Court “should vacate the judgment below and remand for further consideration.”
It’s true that the unpublished district-court opinion that Sotomayor and her panel colleagues adopted relies heavily on Hayden and Bushey and rejects plaintiffs’ various grounds for distinguishing those cases. It’s also true that Sotomayor and several of her colleagues, in an opinion concurring in the denial of rehearing en banc, maintain (contrary to Judge Cabranes and the five judges who joined his opinion) that Hayden and Bushey were “controlling authority.” But apart from the fact that neither Hayden and Bushey involved a government entity’s discarding the results of promotional exams, the position of Sotomayor and her colleagues depends on their assertion that “there was no evidence of a discriminatory purpose” in the City of New Haven’s discarding the results—the very assertion that the Obama Justice Department disputes.
Whelan has links to the court documents and other sources, so visit his post for details.
Posted by: Tom the Redhunter at May 29, 2009 8:15 AM
