As with most everything in politics these days, it seemed to begin with Donald Trump criticizing a federal judge who unceremoniously put a halt to his original travel ban. Trump accused the judge of something which seemed fairly obvious to many of us in the peanut gallery, specifically of being a liberal activist who was putting a political agenda ahead of a rational interpretation of existing federal law. But was this really something new? We’ve been having this argument for nearly as long as I can remember and it certainly boils up every time there’s a contentious confirmation hearing for a new appointee in the judicial branch.
This clearly makes Supreme Court Justice Sonia Sotomayor question the nature of her reality and leaves her sad about the current state of American politics. (Associated Press)
U.S. Supreme Court Justice Sonia Sotomayor said Thursday that she is saddened to see that many people have lost confidence in judges and believe they are political.
Sotomayor made the comments while taking questions from law students at the University of California, Berkeley. The school’s interim law school dean, Melissa Murray, served as Sotomayor’s clerk when the justice was a federal appellate court judge.
Sotomayor said judges try to be fair and impartial and don’t have rigid beliefs they apply to every case. She encouraged people to view judges as “human beings who care deeply about what we’re doing.”
“So don’t give up hope on us, OK,” she exhorted the audience.
It would be relatively easy to scoff at this complaint, particularly given the rather “heated” nature of her own confirmation process. The “Wise Latina,” as she came to be known, was one of the more liberal candidates put forward for the nation’s highest court in recent memory. (Just as a quick side note to the Democrats, you’ll recall that she still sailed through fairly easily. Something to consider when you are debating the upcoming confirmation of Neil Gorsuch.) But forgoing all of the obvious jokes, the Associate Justice is pointing out something which actually has more than a grain of truth in it.
Historically, it seems to me that we used to go through tremendous effort to pretend that our nation’s system of courts was somehow a sacred refuge which floated above the nasty turmoil of American politics. The old saying, embraced by artists, poets and optimists, was that “justice is blind.” And that’s really how it was supposed to be, at least in the minds of the Founding Fathers. But was it ever really?
It’s instructive to note that Sotomayor urged people to view the justices “as human beings” during her remarks. Judges are human beings, and that comes with a significant weight of baggage which can’t be ignored. The best of the bunch may still be able to set aside any deeply held partisan tenets and rule based on nothing but the strict letter of the law. Sadly, that is far too often not the case. These fallible human beings frequently have their own strongly held opinions just like the rest of us and they hold jobs where those beliefs can put a very heavy thumb on the scale of justice. But even when it’s not overt bias and a reckless disregard for precedent or the pesky details of written documents such as the Constitution and its amendments, the word “interpretation” always comes into play.
Whether you’re talking about abortion, health insurance, “hate crimes” or whatever else, there is much in the body of American law which was never specifically spelled out in the Constitution. That requires the exercise of individual judgment and the application of instincts when interpreting the law. The mixed bag of results which we frequently get in Supreme Court cases which come down to 5 to 4 decisions “along party lines” seems fairly predictable in light of all this. With that in mind, I suppose I join Justice Sotomayor in her sense of sadness because there really wasn’t supposed to be any consideration of political parties or ideology in the operation of the courts.
But as I said above, these are human beings we’re talking about and it’s a group of people who have spent their professional careers steeped in a study of subjects which are permanently interwoven with politics. How are we to expect them to arrive at their positions without some baggage trailing behind them? So don’t blame the American people for having the opinion that the courts are politicized. The fact is that they are.