May 29

The appointment and the role of a judge in the greatest republic

The introduction in the White House by US President, Barack Obama of his new Supreme Court nominee, Judge Sonia Sotomayor, as "an inspiring woman", might well turn out to be her best day for several months, reports Anne Davies, the Washington correspondent of The Sydney Morning Herald  (28/5)

The appointment for life of a Supreme Court justice  in the republic is a brutal,  unsavoury and openly political process.

Once nominated by the President, he or she must be confirmed by the Senate. The confirmation process involves attempts by opponents to find evidence that the nominee will change take a particular political line on the court, often referred to as “policy”.

There will be attempts to find incriminating or embarrassing matters in the nominees past usually concerning drugs or finances or of a sexual nature.

…the Bill of Rights…

This is because the Court has arrogated to itself an effectively legislative role in interpreting the Bill of Rights. The Bill of Rights was not, as President Obama suggested at his inauguration, introduced by the Founding Fathers during the War of Independence which  ended in 1783. The draft of the Bill of Rights was not introduced until 1789, six years after the conclusion of the war. 

When it became clear that a union of all the thirteen colonies could not be achieved because of suspicions about the power of the new federal entity, the Constitution was amended by what is now called the Bill of Rights. This is made up of the first ten amendments to the American Constitution. The amendments were finally ratified in 1791.   The only reason for the Bill was that without it there would have been no United States.

It had absolutely nothing to do with protecting individual freedoms during the War of Independence. Based on the British Bill of Rights, the American Bill of Rights was not intended to bind the thirteen colonies, now the thirteen states, or to create individual rights. It was only intended to restrain the new federal entity.    The Bill of Rights was certainly not intended to play the role the courts have subsequently given it. 

…the state of the Court…

At the present stage, seven of the current justices of the court were appointed by Republican presidents, and two were appointed by a Democratic president.  Justices are generally classified as to their policy approach, the litmus test being abortion. The Supreme Court has read into the penumbrae or shadows of the Constitution a right to privacy. From this slim basis the  Court has developed a constitutional right to abortion.  Gay marriage is now also emerging as another frontier.

Four justices are seen as conservative: Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justices Stevens, Ginsburg, Breyer and Souter, whose retirement has created a vacancy are “liberals”, that is left wing.  Justice Anthony Kennedy, is usually  conservative but sometimes swings across to vote with  the liberals.

Incidentally Senator Bob Brown has proposed that Senate confirmation hearings be introduced in Australia.

…..Judge Sotomayor ….

 Anne Davies points out the judge has been through the confirmation process twice before: when she was nominated to the US District Court by a Republican president, George Bush snr and when promoted to the Federal Court of Appeals by  Democrat President  Clinton.

"Obama has chosen a nominee with a compelling personal story over a judicial pick with a solid constitutional judicial philosophy," the Family Research Council, one of the leading pro-life conservative groups, warned. "A compelling personal story is no substitute for allegiance to the Constitution and its sound application to public life." 

Judge Sotomayor grew up South Bronx, New York, with her Puerto Rican mother, who had two jobs so she could educate her children and allow them to realise the opportunities offered by America. Judge Sotomayor excelled and went to Princeton and Yale before becoming a prosecutor, a corporate lawyer and then a judge.

Wendy Long, counsel to the Judicial Confirmation Network, a conservative group, said  "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written. She thinks that judges should dictate policy and that one's sex, race, and ethnicity ought to affect the decisions one renders from the bench."

Her most controversial  decision is a recent one in which she ruled it was legal for the New Haven, Connecticut, Fire Department to dispense with test results it intended to use for promotions after no African-Americans gained sufficient scores to be promoted.

In the videos below she discusses the role of the appellate courts in making policy joking that courts do not make law. She laughs nervously and notes that she should not have said that because the address was being recorded.






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