Quote of the day by Sony Sotomayor during her opening statement. “In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law.”
Here is a video of her in 2005 saying that laws are made in the courts, then she says that she shouldn’t say that because she is on tape. Then she tells the “we don’t make laws” joke to much laughter.
Is she lying now or then? Could it be that she realizes she is on tape this time? Or did she finally learn what the role of a judge is since 2005. I think that there is probably a judge in the country who learned what a judge’s job is before he was fifty years old. Maybe it would be a good idea to pick a name randomly out of the phone book, odds are that the name chosen would know that judges don’t make laws.
Monday, July 13, 2009
Subscribe to:
Post Comments (Atom)
11 comments:
I think her answer in the hearings is the politically correct answer. She has to say that to be confirmed. But, it's not that simple. I mean, you can't just say, "A judge's job is to apply the law," because the law doesn't cover everything. A judge has to apply INTERPRETATIONS of the law. If the law covered everything, the judges wouldn't be necessary. We'd just need a town crier, or someone, to say, "Ok, well, here in the law it says that in this situation the ruling should be such and such, and that is that." It doesn't work that way. Thus, in a very real sense, the judge DOES make the law. In many situations the judge IS the law. Even though it's not politically correct to go around claiming judges make the law. I think that's what she was joking around about. I realize you probably don't like her because she's a liberal. But, despite her views, from what I hear, she's one of the more qualified as far as straight-up experience. Senator Leahy said in his opening statement yesterday that "she has more federal court judicial experience than any nominee to the United States Supreme Court in nearly a hundred years." So, agree with her or not, picking someone randomly from a phonebook probably wouldn't work. But, that IS a pretty smug and unprofessional video of her, right? Not exactly great for her reputation.
Charles, I'm glad to hear that we can both agree that she is Sotomayor is a judge who lies under oath when testifying to Congress. I think that is a good reason not to confirm her. I agree with you that the law doesn't cover everything. It is a judge's job to apply the law, if the law doesn't cover something then the it is not the judges concern. We already have someone whose job it is to be the "town crier." The "town crier" is a judge, a judge should say, "ok, well, here in the law it says that in this situation the ruling should be such and such, and that is that."
There is more to being a qualified judge than having experience. For example, if you are a judge that has tons of experience, but at the same time you are dishonest, lie under oath to Congress, think that you actually have the power of Congress to make laws, then that means you are unqualified. I agree that that picking someone randomly from a phonebook isn't the best method of selecting a judge, but it would be a method that would have a better chance of selecting an individual who at least attempts to apply the law as it is. I would rather have a judge that has never been to law school and just does his best to understand and apply the law to the best of his ability than to have a judge who thinks she is some sort of queen who has the authority to make laws. Luckily though, those aren't the only two choices. Why doesn't Obama choose a judge who respects the Constitution, has experience and a good understanding of the law?
Sorry to confuse, but I don't agree that she lied. Even though I said she had to say that to be confirmed, doesn't mean that it's a lie. You see, her two statements don't carry equal weight. One is a confirmation hearing for the Supreme Court of the United States of America. The other is an informal off-the-cuff clip from youtube. I'm sure you can understand the difference. Her statement under oath was the truth. But her tongue-in-cheek remark at Duke Law School was not a lie. The problem her is found in your unwillingness to accept the different definitions of the term "making laws." To you, it seems, one either makes law or doesn't make law. That is, it seems you feel that if she says she DOESN'T make law, it's impossible for her to make anything that could ever be called "law," without her being a liar. The word "law" refers to different things. For example, even though the court is not considered a legislative body, it does makes decisions. Whether or not you want to refer to those decisions as "laws," "rulings," "policy," "decisions," "opinions," or whatever, the fact is they serve as precedent. And a lot of law is built on precedent. Obviously, this "law" is different from the "law" contained in the constitution, or the "law" made by Congress. But it is still law. The various definitions of the word "law" give flexibility to Sotomayor to use them in different ways. Even if you hate her, I think she deserves this flexibility.
I agree that experience isn't everything. And I can understand that since you disagree with her views and think she's a liar, you would not find her qualified. However, the criteria that the US government uses to determine whether a nominee should be confirmed happens to be be based quite a bit on experience. That is, the qualifications have more to do with knowledge and ability than just with whether or not people agree with her. Yes, her view on the role of court is a huge deal. But, I agree with you that a big fat liar wouldn't be a good justice. But, your case for accusing her of being a liar is, to date, pretty weak, I'd say. But, maybe there's better evidence out there.
"Why doesn't Obama choose a judge who respects the Constitution, has experience and a good understanding of the law," you ask? Don't you mean, why doesn't Obama choose a judge that sees everything the way you do? Because that's what I'm hearing. I mean, I get that you hate her and don't trust her. But, I think you do yourself a disservice by saying she doesn't respect the Constitution.
Back to the Supreme Court. You agree with me that the law doesn't cover everything, but you think that "if the law doesn't cover something, it's not the court's concern?" Can I infer from this that you think all the landmark, precedent-setting decisions in history are illegitimate?
Yes, I knew that you didn’t think that she was a liar, I was kind of joking. Watching the confirmation hearing it was hard for me to believe that she believed everything she was saying. Do you really believe that she believed what she said when she said, “In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law.” The important thing in court decisions is for the judge to attempt to apply the law to the case to the best of their ability. Yes, it is not always obvious, but sometimes it is. Like in abortion, it’s obvious that abortion is not in the Constitution. If you ever want to have a good laugh, read Roe v. Wade. Talk about weak arguments. Yet Sotomayor somehow agrees with that crappy decision. I don’t expect Obama to choose a judge who respects the Constitution. After all, Obama is the same guy who believes that the Constitution gives a mother the right to choose to kill her premature baby by refusing to provide it with medical care after birth. Don’t know what the founders were thinking when they put that gem into the Constitution. I think it is accurate when I say that she doesn’t respect the Constitution. Well, maybe she respects the historical significance of the Constitution but she doesn’t seem to respect it as the highest law in the land. I don’t think you can simultaneously respect the Constitution while making a mockery of it by pretending like things are in there that aren’t. Also, I don’t hate Sotomayor at all, but you are right that I don’t trust her. After she is confirmed we will see what she means by “fidelity to the law.” The words mean nothing to her, just like the words mean nothing to the other activist judges. I don’t think that all the landmark, precedent-setting decisions are illegitimate. Decisions based on the Constitution and the law are legitimate. Decisions that are not based on the Constitution and are not based on the law are illegitimate.
The court's function is to interpret the law. With the ultimate law being the Constitution. From a Justice's perspective, nothing can EVER trump the Constitution. Not public opinion or social injustice. When the Court gives its holding for a case it is essentially law, as Charles said. The problem is when the holding is essentially creating a new law, as opposed to merely interpreting whether the current law applies to the facts of the case before them. The longer the string of precedent's the farther from the Constitution we go. The court should give more weight to the text of the Constitution than their own precedent, which they only view as law until they decide to change it. The whole idea of stringing precedents out is bad. This was the Court's own idea. You do need precedent so you aren't deciding the same thing over and over. But it should be just that, precedent, the way the Court has previously interpreted the law to a specific set of facts. The Court has gotten carried away.
We have law makers, elected law makers who, in theory, answer to the people. The Court does not answer to anyone. This can be good, in that they can focus on interpreting the law, but it can be dangerous when they know they are untouchable and have a horse in a race for a cause.
It can be frustrating. I remember Kennedy earlier this year justifying a decision, not based on the Constitution, not based on precedent, but based on what he perceived to be "shifting societal values". I think a Justice should be removed for making that a basis for his opinion. Even stating that as a reason in his opinion. That is wildly off from his role. Not only was he wrong in his declaration of what America's values are, he is not a social barometer. He didn't base it on any studies. He probably just based it on watching MSNBC.
Currently I believe the Court's power is greater than both the President's and Congress. I don't believe it is supposed to be that way. I don't believe the Framers intended that. The Judicial Branch was the last branch created in the Constitution. It is much shorter than the other Articles. I'm implying that this means this Branch is the "lesser" of the three "equal" branches. I'm not sure if that is what the intention was, but it's something that I wonder about. One thing is for sure, the Framers did not intend for the Judicial Branch to be more powerful than the other branches. A "check" on Congress, yes. But not more powerful.
I believe that the Supreme Court, in interpreting the Constitution, has interpreted it to be granting them more authority and power than intended. They self-declared themselves to be the ultimate interpreter of the Constitution. Lawyers are good at interpreting things in a way that are highly beneficial to them.
Speaking of, it would be nice if a Justice was not a lawyer. It's been a long time since that has happened, and maybe it's not too practical nowadays, but it would be refreshing.
Mostly I'm just rambling. My main point being that the Court has taken too much power unto itself and has inserted itself into law making areas that were never intended.
*This is only my opinion and does not necessarily reflect the views of the Independent Elephant, it's staff, or its subscribers. It is also subject to change depending on any shifting societal values that I may watch on TV tonight.
Good points. Yeah, it definitely seems like the Supreme Court has gained a lot of prominence. At the beginning they almost seemed like a joke. But I think that the way the system is set up makes it ALMOST inevitable that the court's influence would grow with time. Just the combination of the fact that the Constitution doesn't change much with the fact that time brings up so many new situations. It seems logical that the court, being built partly on precedent, would become more important. That's not a hard and fast principle, or anything, but it seems pretty intuitive.
I think the Legislative Branch has to carry a lot of the blame for the court's present influence. No one wants to take a stand and do anything to rock the boat. BUT, sometimes situations arise where a decision is necessary. SOMEONE has to make it. If the Legislative Branch didn't do anything prior to the time the decisions needs to be made, it's going to fall into the court's lap. It's almost like they're playing hot potato. I mean, even WHEN they pass effective legislation, questions and cases still arise. It's inevitable. But, yeah, I think the Legislative Branch has to take a lot of the responsibility. Also, the rights of states are a problem. Not that I don't want states to have rights. But, I'm definitely more a federalist/fascst. I can't STAND the Articles of Confederation. But, the fact that the federal government is always tossing the hard questions back to the states, and vice versa, forces the Supreme Court to decide. And when the court decides, it becomes more influential. I would love for Congress to step up to the plate and do something, like ban AK-47s, and then the Supreme Court would just be twiddling its thumbs. I wish there had never been any Brown v. The Board of Education. I wish the Congress could have made a law BEFORE it ever came up, because it was OBVIOUSLY the right thing to do, whether people were "ready" for it or not. Anyway, I think the Supreme Court should be doing a whole lot more checking up on what the Congress has passed, than the Congress complaining about how unconstitutional the court's decisions are.
But, the constitution is definitely tricky. I've watched most of the confirmation hearings, and it drives me CRAZY how often they tried to trick her into saying, implying, or suggesting that judges can take liberties with the constitution. It's SUCH a taboo notion. Of course, she's all, "No, no, no, I would never change what the framers said," or "The court doesn't make laws, it interprets laws." But, it's OBVIOUS they have make laws. It's OBVIOUS. If not, what are they doing? It's just ridiculous. I mean, the constitution doesn't say very much. And what it DOES say isn't always that clear. Even the punctuation can make it foggy. Like this for example:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Those three commas wreak havoc. I mean, is that even a complete sentence? I mean, if it said THIS it would be so much clearer:
"A well regulated Militia IS necessary to the security of a free State, AND the right of the people to keep and bear Arms shall not be infringed."
I mean, if it was like that? Holy cow, that would be so nice. HOLY cow. It would be easy. But, no, it's not like that. Why is that comma between "Arms" and "shall?" I mean, the first comma is fine. "Being necessary to the security of a free State," tagged onto the end of "A well regulated militia," with the help of a comma is perfectly fine. And I can see how "the right of the people to keep and bear arms" can be further description of a "well regulated militia." But, the way it is written is not clear. I'm sure it was clear to them. But, what it means to us requires interpretation.
Another thing that is hard about the constitution, for me, is how little it says. This comes up often in Shari'ah. Some Islamic scholars are SO dedicated to the Koran and Hadith that if something exists that isn't mentioned specifically WITHIN them, it's not legal. One scholar, Ibn Hanbal, famously refused to eat watermelon because watermelon eating wasn't mentioned anywhere in the Koran or in the accounts of Muhammad's life. That's how I feel a lot of constitutional debates sound. The constitution definitely doesn't covers everything. And, no matter one's opinion, the stuff they cover is debatable. What it DOES do it give us a brilliant structure to make decisions for our society as we deem necessary. It's insane that this idea is so taboo. But, I know it is. YES, we want to protect the constitution. But, I don't know why we can't just accept that it defines very, very, very little. And we have to figure out what we're going to do in a lot of cases. YES, the constitution is the highest law in the land. But, it's far from an all-encompassing law. It leaves a lot of space for other laws to exist which don't necessarily conflict with it. But, yeah.
Sotomayor sounds pretty level-headed to me. I'm not a fan of abortion, liars, or racists, but I think she understands the sides of the argument pretty well. I heard Glenn Beck, or Hannity, or Rush call her a Trojan Horse. I guess time will tell. But, I think that's a little harsh. But, yeah, we'll see what she does with her power.
Where the Constitution is silent, it's up to the states or the people according to the 10th amendment. That's the genius of the founding fathers and the genius of America. If one does not like the law where he lives, and has done what he can to change the law, but determines that he can't live for whatever reason with that law, he is free to move somewhere that is more in line with his point of view.
Mobility is one of the greatest aspects of Federalism.
When the federal government oversteps it's bounds, it binds all citizens to the same law, whether they agree or not. Those who do not agree then have no recourse to improve their situation. They can't move to another state, they're essentially stuck.
Look at the illegal Roe v. Wade decision as an example. According to the 10th amendment, abortion is a decision to be left to the states. Instead, the Supreme Court by a 5-4 decision illegally forced it upon everyone that resides within the borders of this country, thus subjugating those who disagree with abortion to a tyranny that the founding fathers tried to prevent.
Not only do Statists try to impose their (so called) values on the entire country, they also try to limit mobility with insane environmental arguments. Imposing their will, and limiting mobility are amoung the top goals of Statists like Barack Obama.
The 10th amendment makes the Constitution applicable to any law or circumstance that comes up. Unfortunately, too many people like to pretend the 10th amendment does not exist.
I agree that the reason the Constitution is so short is because they did everything possible to limit the power of the federal government. That was their #1 priority. Spell out a couple things that would apply to all states, and leave the rest to the self-governance of the states. That's what they wanted, whether people want it today or not.
I agree it would be nice if the things they did spell out were easier to clearly interpret. That's why the other writings can be useful to determine what the intent was. In my opinion the 10th amendment interpretation is clear and in line with Spencer's comments. In fact, this may be the clearest part of the entire Constitution. It is ignored by power hungry feds and hoped that everyone will just brush it under the table. It both reads clearly and is in line with their other teachings.
I also agree in the the other branches being passive have contributed to the judicial branch becoming too powerful. If the other two branches were more aggressive in checking the Court it wouldn't be so bad.
Yeah, the 10th amendment is money as far as clarity goes. BUT, it presupposes we KNOW what powers are "delegated" or "prohibited" by the constitution. Again, it takes us back to interpretation. That's why I don't have a problem with the government making determinations, no matter what branch it is. I DEFINITELY don't want the constitution to enumerate and stipulate every little thing. It's definitely more of a framework. But, some things are helpful, I think. Like the Bill of Rights, itself, is kind of a crazy phenomenon. On the one hand it guarantees important things. On the other hand, its mere existence sort of implies that the government has the power to exercise power in similar types of areas that aren't really expressed anywhere else in the founding documents. That is, even though the 7 articles of the constitution don't give the government those powers. I mean, yes, no soldier shall be quartered without the consent of the owner of the house, but nowhere in the 7 articles does it suggest the government CAN quarter anybody. So, if it's necessary to spell out restrictions on things that aren't suggested or said, like quartering, what OTHER mysterious possibilities exist out there that AREN'T spelled out? So, personally, I don't want the government to have too much power, but I want it to be able to determine SOME important things. That is, I don't want the government to invent too much power for itself, but I don't mind it clarifying certain rights and restrictions. But, I think the degree to which the government does NOT define things determines our need for decisions by the court. I think it's super important to recognize what the constitution IS, but maybe more important is recognizing what the constitution is not. Probably my biggest beef is when people alternate citing what the constitution includes or does not include to conveniently support their views.
As for the states, Bubs, your point about mobility is good. I'd never thought about it that way. But, I think living in a society means that a lot of times people can't really live in environments that are PERFECTLY in accordance with their views. Some times you have to "take one for the team." I'm not saying you meant otherwise. Obviously you didn't. But, I think some laws are useless unless they're standard for all states. I think it's important to give states enough rights that they don't want to secede, but not so many rights that the identity of an individual state surpasses NATIONAL identity. I realize how the central government can seem oppressive to some. Lots of people don't like the idea of people in a big city back east somewhere making decisions that affect the heartland. But, I really don't see it as tyranny. And not ALL founding fathers were so big on the states' rights. In the end it was a compromise. Plus, I'm sure those Confederates saw meddling from the North as tyranny. But, the point, to me, is that it's about the country, not about the states. In my mind, the union doesn't exist to benefit a certain state or region. To me, the goal is for the union to benefit from the union. If individual states can find a niche in the context of the union, that's great. But, they should know their place. I hate how people can go to different states to have gay marriages performed, for example. But, I'm not so concerned about other things, like buying fireworks in Wyoming. I just think there's room for some big blanket laws applying to everyone, and also plenty of room for decisions the separate states can make themselves without federal meddling. I think uniformity works well with a lot of things.
Bubs, I wasn't aware of Obama trying to limit mobility. Can you elaborate?
Obama and the Statists are always trying to limit mobility, because it's easier to amass power amoung an immobile people.
That's one of the reasons they have this all out war going on with Carbon Dioxide.
Carbon Dioxide is a compound that doesn't even make up 1% of our atmosphere. It is essential to plant growth, and is exhaled by human beings. It is necessary to have Carbon Dioxide and other greenhouse gasses in the atmosphere to help keep the earth at moderate temperatures. Were it not for Carbon Dioxide and other greenhouse gasses, the earth would be very hot when exposed to the Sun, and very cold when exposed to outer space.
Despite this fact, and recent studies that have shown Carbon Dioxide to not have any effect on the temperature of the earth, the EPA, along with the Supreme Court declared Carbon Dioxide a pollutant, giving the Statist the right (at least in his mind) to regulate it.
Statist hate Carbon Dioxide, not because it may cause global warming (studies have shown that there is no evidence for this assertion, but increased Carbon Dioxide has been shown to increase plant life. If you really want to be "green", therefore, you would actually promote Carbon Dioxide "pollution".)but because it is the means by which humans better their life, and is also the main means of transportation.
The recent cap and trade nonsense that just passed the house has a provision in it that mandates home inspections before anyone sells their house. If you want to sell your house, according to the cap and trade law, you have to hire some government loser to come into your house and determine if it is sufficiently energy efficient. If it doesn't comply, you have to pay for the upgrades before you can sell.
This is just one example of Statists trying to keep people immobile. Statists are alarmed by the depopulation of statist strongholds such as California and Michigan. This is a means to keep them there. (Funny how you have to try to keep the very same people that voted for the buffoons that destroyed the state in place.)
If you're looking, you'll find other examples of how Statists try to limit mobility such as CAFE standards
Post a Comment