Following will be my initial thoughts on Judge Sotomayor's nomination for the Supreme Court. Please note, I am making no representations that I am wholly familiar with her judicial philosophy or rulings, as I stated, these are initial thoughts.

I'm going to get this out of the way right now - the concept that I should be thrilled with her nomination simply because she has girly bits and hey, I do too is inherently sexist and insulting. This presumption that gender identity should trump any other philosophical differences presumes that I, as a woman, am incapable of placing thought above identity. That's deeply, deeply insulting. My agreements and differences are with her ideas, not her sex. To claim that I must set aside all that I think and believe simply because she is female as well places the realm of theory underneath that of tribal identity. What utter bosh.

IMMEDIATE UPDATE: I'm trying to get my hands on the speech referenced in this post for my own analysis. But based on the excerpts and what Gabe says over at Moron Central, well, I retract my attempts at being fair minded and not assuming the worst. The idea of "special knowledge" and different ways of thinking based on ethnic and gender differences is appalling, particularly in a judge. So, while I stand by the statements contained below, I am less inclined to give the benefit of the doubt to her at this point.

More geekery to follow:
I'm sure everyone has seen the video clip wherein Judge Sotomayor basically admits that the appellate courts are where policy is made.  I will concede that an argument can be made that she is reflecting reality rather than stating her personal preferences.  That is not how I interpret what she's saying, specifically because she prefaces with the admission that she shouldn't say that.  If she believes that her role is to create law rather than to interpret law, then I am deeply concerned by this nomination.

The separation of powers is fundamental to the American variant of democracy.  Courts are to interpret the laws which are passed by the relevant legislative branches.  There's a reason for that.  If people don't like the laws that are passed, then new officials can be elected and the laws can be changed.  Given the speed, or lack thereof, with which the courts work and the Anglo-Saxon reliance on precedent, judicial changes are harder to overcome.  There is also the fact that Supreme Court justices and Federal judges are lifetime appointments rather than elected officials.  It is nearly impossible to remove a judge from office once appointed.  That means that a judge will be in a position which she can rule however she wants with basically no check or balance.  Sure, a decision can be overturned by a higher court.  But if the higher court also aggregates policy making power for itself, well, then there is no check on the power of the judiciary.  This leads to the situation we are fast approaching wherein the citizenry, in whose hands power is ultimately to reside, no longer believes that it has any impact or influence over public policy or the decisions that impact the nation.  That, in turn, leads to questioning the validity of the power of the judiciary and legislature.  After all, if laws will be changed by the court's whim, what does it matter what the law says? 

This leads to the related issue of concern for the rule of law itself.  No, we should not be utterly bound by the decisions of the past.  Bad precendent is bad precedent.  It is completely fair to advance arguments that a prior decision should be changed or that another line of cases should be followed.  But that is different than stating that the appellate courts are where policy is to be created or applied.  Decisions are to be made from reason, not emotion.  If it is otherwise, well, then it's not a decision, it's a whim.  When I hear people discuss wanting judges with empathy or those who will look to policy rather than technicalities, I hear people saying they want emotion to overtake reason.  That is not judicial discretion.  That is whim, pure and simple.

The rule of law is important because it provides stability.  The Chrysler bankruptcy is deeply worrisome because it appears that previously well established concepts for priority of claimants and notions of secured debt are being thrown out the window.  Once that starts, how is any lender/bond holder supposed to know and evaluate the risk being taken.  The same holds for claiming appellate courts are to create/apply policy.  Whose policy?  What are the limits of that?  Is it the policy being represented by the passage of the laws by the public's elected officials?  Is it the judge's own policy preferenes?  The current administration's?  Claims that appellate judges are or should be free to reach determinations based on policy and not the law raise serious questions regarding precisely the role that the courts and judges should take. 

So yes, yes, I am concerned.  And yes, I do believe it is fair to oppose her nomination if Judge Sotomayor believes that decisions are to be policy based rather than based on the interpretation of the law.  Judicial philosophy is a fair, indeed I would say primary, reason to oppose a nominee. 

To go back to the girl thing once again, I will say I also find it offensive when people fall back on the whole you have to be nice because she's a woman thing.  Excuse me, but I am fully capable of taking care of myself.  If a woman enters the public fray, then she should be ready to deal with the ensuing storm.  Which is not to say that the storm should not be as personally based as current attacks have been.  But calls for greater civility, indeed basic human decency, should be based on sheer humanity, not the sex of the person involved.  Attempting to make the political sphere kinder and gentler for woman based simply on being a woman accepts the premise that women are weaker and need protecting.  I reject that.  Utterly.

Again, I reserve the right to extend and revise but those are my initial thoughts.

Posted by: alexthechick at 09:58 AM | Comments (5) | Add Comment
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