Monday, July 13, 2009
the myth of the unbiased judge
The confirmation hearings for Supreme Court nominee Sonia Sotomayor began today, and by all accounts, plenty of senators are ready to dig their heels in and start grilling when the questioning session begins in earnest tomorrow morning. I suppose this is to be expected nowadays, and I'm not particularly concerned that Sotomayor will have any trouble getting confirmed. But I wanted to take a moment to discuss what many believe is going to be a central argument in these proceedings: namely, that a Supreme Court justice (or any court judge for that matter) is supposed to be completely unbiased when deciding his or her rulings.
To this I say: Nonsense.
Justices of the Supreme Court—and indeed of any trial court in the United States—are charged with applying the rule of law as written in the Constitution and the web of Congressional laws passed in the 200-odd years since our country began. As discussed in some detail in yesterday's New York Times, some, including Chief Justice Roberts in his own confirmation hearings, have likened Supreme Court justices to baseball umpires; the idea is that they simply enforce the laws, they don't make them. But everyone knows that judges' decisions are but interpretations of the law. Laws aren't always black or white; if they were, we wouldn't need judges. Indeed, the word "judge" implicitly suggests using one's experiences and understanding of the law to make a conclusion about a given case.
So how do judges make legal decisions? Well, they hear arguments from both sides and look to current laws and judicial precedents to guide them whenever possible. But when precedent is lacking, or when society has changed such that precedents must be rethought, it is personal point of view that necessarily impacts how a judge views the facts of a case. This is indisputable; there would be no "conservative" judges or "liberal" judges otherwise—there would simply be judges. And there wouldn't be any need to question Supreme Court appointees quite so fiercely; everyone would be in agreement about what's right and what's wrong.
Ergo, to complain about a judge drawing on her background to help interpret laws and predict how decisions may play out in the real world is kind of crazy. I guarantee you that every Supreme Court justice has drawn from his or her experiences at one time or another during his or her career. That legal verdicts are also called "opinions" is another etymological clue to the fact that even the Founding Fathers realized that judges would draw from their lives to make decisions.
From everything that's been said so far about Sonia Sotomayor, it seems clear that she's a superb judge who has been as objective as realistically possible in her decisions. Indeed, out of some 400 cases she's decided as an Appellate Court judge, only three were overturned by the Supreme Court—and of those, two were narrow decisions. Sotomayor may be wishing right now that she had refrained from her "wise Latina" comment, but most people forget that immediately before it, Sotomayor declared that "there can never be a universal definition of wise." This was, perhaps, the wisest remark of all. ∞