Like most pundits of the DC class, Howard Fineman is a tool. However, even a blind squirrel finds a nut now and again, and this column is something I can agree with: the recent Senate Judiciary hearings on Supreme Court nominee Sonia Sotomayor were completely pointless, and moreover, seemed to demonstrate the fact that most people have no idea what the Supreme Court is for.
The thing that bothered me the most was a belief that seems to be echoed by many Republicans: that somehow, the ideal judge is one that is “objective”. John Roberts described it as “to call balls and strikes and not to pitch or bat”, as if judges are neutral referees on a field where the rest of society plays. I’ve long had an issue with those who pretend “objectivity” can exist in any field that involves other people, so that alone is enough to set me off. However, even worse is the notion that judges are “impartial” referees who exist to simply implement the rules as determined by some outside force. This is so far off the mark that anybody who rationally argues this obviously does not understand how our judicial system works, especially the Supreme Court.
I decided not to go to law school and am not a lawyer or even a law student, so I can’t weigh in with any scholarly commentary. However, I did enough research when applying to law school to learn that shockingly, law is not an “objective” field where notions of what is correct and incorrect are easily discernable, and in fact anybody who enters law because they believe it is filled with cut-and-dried answers will be sorely disappointed. It’s not physics, where you can say that yes, pi is not equal to 22/7.
Moreover, this is doubly true for the Supreme Court, which almost always takes court on an appellate basis and can itself decide which cases to grant cert to. These cases almost invariably deal with issues where established law and precedent are not clear or even contradictory. In these cases, the Supreme Court has to decide which arguments and principles are stronger. It is, in fact, not being impartial, let alone being “objective”. If the law were truly that objective, then all we would have are 9-0 decisions. Pray tell, how did Clarence Thomas “objectively” decided that strip searching a teen was permissible in Redding v. Safford, and why was he the only one out of nine to objectively determine that? Let’s not even bring up that paragon of objectivity, Bush v. Gore, a case that conservatives are all too quick to conveniently forget when it comes to being against so-called “judical activism”.
That brings up another point: “activism” can be both on the liberal side AND the conservative side. Conservatives generally define “judicial activism” as the Supreme Court striking down a law as unconstitutional and ruling on the liberal side of social issues, such as the Lawrence v. Texas decision which struck down a state law banning sodomy. However, there can certainly be laws that are struck down that go the other direction, and as Tom Schaller from FiveThirtyEight shows, conservative courts can strike down just as many laws as liberal ones. They too can “pitch and bat”, changing laws that legislatures passed, and in effect “legislating from the bench”. They just like to pretend they don’t.
The fact is that the Supreme Court acts on cases where the laws aren’t clear, and thus they need to come up with some guidance. That guidance is not magically derived by looking into a crystal ball or channeling the spirits of the writers of the Constitution: it comes from within themselves as they apply their own knowledge and experience to the arguments and precedents, deciding which are most salient. And that’s why we need a Supreme Court that reflects this nation of more than 300 million diverse individuals. I’m one of those crazy people who believes that diversity in and of itself is a good thing, because it leads to more creativity and less groupthink. I think it’s great that we will soon have a Hispanic woman on the Supreme Court, one who is extremely qualified (anybody who thinks that you can get into Yale Law School and be an editor of the law review without being incredibly talented is living in a fantasy world). I think we need more than two women on the court, and although I am not in favor of any quotas for achieving some kind of mythical, perfect makeup of the court, I do look forward to seeing other nominees who do not look like me.
Every time there is a nominee to the Supreme Court, we go through the same thing: there’s a lot of hemming and hawing, grandstanding, pretending to not have any opinions on any important issues, and vague assurances that the nominee will respect precedent and not “legislate from the bench”. There is much heat and little light from these hearings. Why bother if we aren’t going to even acknowledge that it is the Supreme Court’s job to clarify what is muddy, and inject their beliefs into the process?