White Men Can't Judge

For anyone who has been watching Judge Sotomayor's confirmation hearings and who watched the hearings twenty years ago for Judge Robert Bork who was nominated by Ronald Reagan in 1987, it's hard to believe that the process for the two is technically the same.  Judge Bork was "savaged by the left" so ferociously and effectively - despite his sterling credentials and universally-acknowledged brilliance, he wasn't confirmed - that the way judges are appointed and confirmed changed, with politics, race, and demographics today being far more important than competence.

In a recent Newsmax interview on the subject, Judge Bork said:

But the Supreme Court has only itself to blame for that.  The Supreme Court made itself, starting in the 1950s, into an increasingly political institution, and once you're a political institution with that kind of power, people are going to fight to control the institution any way they can.

With all due respect to Judge Bork, the politicization of the Supreme Court began long before the 1950s: it started in 1937 during the Roosevelt administration.  The men who wrote our Constitution were very much afraid that government would grow to the point that it had too much power over individual citizens.  The Constitution lists very few powers which were given to the federal government and the Founders very carefully reserved all other powers to the state governments or to the people.

Much of the "New Deal" legislation favored by Roosevelt was overturned by the Supreme Court on the unarguable grounds that the Constitution did not permit the Federal government to do what Roosevelt wanted to do.  Nowhere does the Constitution grant the federal government the power to regulate prices, for example, or to provide cash pension payments to elderly citizens.  In fact the Constitution states that the government may not do these things, because they are reserved to the states or the people.

The Constitution does not specify how many judges should serve on the Supreme Court, however.  Roosevelt threatened to "pack the court" by using his Democratic majority in the Senate to appoint extra judges who would be more likely to see things his way.

Wilting under the threat of having his personal power diluted, Justice Owen Roberts abruptly switched sides.  Instead of 5-4 majorities ruling against bigger government, the court began to issue 5-4 rulings in favor.

From then on, the Court upheld essentially any new program the federal legislature wished regardless of how tenuous or nonexistent the link to powers authorized in the Constitution.  Thus, Roosevelt and his Democrats short-circuited the constitutional barriers which had kept the federal government in check.

All legitimate powers of the Federal government are listed in the 18 clauses of Article I, Section 8.  The power which was used to destroy the federal system by moving most power from the states to the federal government is called the "commerce clause:"

3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Everything is Interstate Commerce

In essence, Justice Roberts decided to interpret the "commerce clause" far more broadly than in the past.  The broadening of the Federal government's authority is best illustrated by one ruling in favor of the Department of Agriculture.

The Department wanted to favor farmers over consumers by limiting the amounts of grain which farmers were permitted to grow.  This would keep prices high.

A farmer named Filburn grew grain to feed his own animals.  Since his grain was eaten on his farm and did not enter interstate commerce, Filburn argued, the government had no authority to regulate how much of it he could grow.

In Wicard v Filburn, the court pointed out that if Filburn had not grown his own grain he would have had to buy grain.  Since the grain he would have had to buy might have been grown in another state, his not buying grain affected interstate commerce - thus, the federal government had authority to prohibit his growing it.

Similar logic was used in Gonzales v Reich to rule that the State of California could not allow California citizens to use "medical marijuana" which had been grown in California - their pot couldn't be distinguished from pot grown in other states and was therefore part of interstate commerce just as Filburn's home-grown and home-eaten grain was part of interstate commerce.  By this logic, all drugs - in fact, all commodities of any kind whatsoever - are part of interstate commerce and are subject to federal regulation.

When you breathe in oxygen and exhale carbon dioxide, your CO² might be blown to another state, of course.  Thus, every breath you take is part of interstate commerce and is subject to regulations relating to CO² emissions; so says our Supreme Court.

This view of the Constitution has become so embedded in our national policy that it's more or less expected that the law doesn't mean what it says.  Sotomayor surely holds to this view, but so do Roberts and Alito; no difference there.  The real question is, what other extra-Constitutional extensions might a new justice be inclined to make?

Sotomayor clearly believes that the Supreme Court ought to have the power to make new laws as they see fit.  In addition to her notorious statement that a wise Latina would make better judgments than a white male, Sotomayor also observed that appellate judges make policy.  Judge Bork addressed this issue:

In some sense, all judges make policy, because the fact that there's litigation means the question isn't [resolved] and the court has to settle that, which is to choose one policy rather than another.  But the question is how you do that. If you do it by doing the best you can with the legal materials at hand, that's fine. If you do it without reference to the legal materials, without reference to the law, that is lawless.

A Government of Laws or a Government of (Wo)men?

Mr. Bork's concept of a judge ruling according to the law without regard to his or her personal feelings is utterly unlike Mr. Obama's desire to appoint judges who rule according to "empathy."  Mr. Obama wants judges to rule based on their feelings rather than on the facts and on the applicable law.

Mr. Obama's view is not what our Constitution says.  In fact, it is the exact opposite of the views held by our Founders and expressed in our founding documents.

The United States was intended to be a government "of laws, not of men"; Mr. Obama cares far more about the specific men - or in this case, women - and their particular feelings on any given day than the clear text of the written law.

The Constitution gives lawmaking powers to the US Senate and the House of Representatives, not to judges.  The Constitution says that judges are supposed to "interpret" the law, not make new law.  If they don't like the law as it is, they're free to say so and to call on the legislature to change it, but they shouldn't go ahead and rewrite it themselves.

Judge Sotomayor states that affirmative action sent her to Princeton, saying that her admission would have been "highly questionable" if not for affirmative action.  We'll never know what disadvantaged but higher-scoring young white male failed to gain admission to Princeton as a result of her preferment - but mathematically, there surely was one.

It's no surprise that, as we've pointed out before, affirmative action sets different racial groups at each other's throats.  In elevating Judge Sotomayor, we're likely to perpetuate our destructive system of racial preferences for another generation even though most Americans want them abolished.

In the same speech where Judge Sotomayor said that a wise Latina would be a better judge than a white male who lacked her particular life's experiences, she quoted Prof. Martha Minnow of Harvard Law School, who states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging."  If Minnow's quote represents Sotomayor's beliefs, she stands against every principle of law known to Western government and every mechanism for ensuring our freedom from oppression by government.

In fact, that view of the court system destroys the very concept of law - if we don't expect judges to try to rule impartially, but rather shrug and figure that they'll always go along with their prejudices anyway, why do we even bother to write laws down?  What difference does it make what the law says if the judges are going to rule on their prejudices anyway?

Unlike Judge Bork, Prof. Minnow and, apparently, Judge Sotomayor don't even claim to try to follow the law.  They proudly make rulings based on their feelings, and yes, on their prejudices.

Back to Africa

We see that sort of "justice" all over Africa.  African courts are notoriously corrupt as President Obama observed in his recent speech in Ghana:

No business wants to invest in a place where the government skims 20 percent off the top, or the head of the port authority is corrupt. No person wants to live in a society where the rule of law gives way to the rule of brutality and bribery. That is not democracy, that is tyranny, and now is the time for it to end. [emphasis added]

- President Barack Hussein Obama, on the need for reform in Africa, New York Times quote of the day, July 12, 2009

Mr. Obama is entirely correct in saying that the rule of law should give way to nothing.  Our Supreme Court abandoned the rule of law and injected itself firmly into politics in 1937 by broadening the "commerce clause" to give the Court power over every aspect of our lives.

It took 50 years for people to realize that the Court had become a law-making body of 9 who were accountable to no one - it was not until President Reagan nominated Judge Bork in 1987 that liberals decided to trash a highly-qualified man simply because they didn't think he would rule the way they wanted.

Mr. Obama spoke truth, "No person wants to live in a society where the rule of law gives way" - but not only do we live in a society growing more and more lawless and based more and more on prejudice, Mr Obama wants to even more thoroughly entrench the view that that's OK as long as the prejudices lean in the direction of him and his friends.

If he feels that our Supreme Court needs a "wise Latina" more than it needs a wise WASP, a wise Jew, or a wise anything else, clearly the written text of the law no longer matters.  We may as well just send Congress home and simply appoint local chiefs to make rulings based on their own feelings of what's right.

That's how it's done in much of Africa, of course, and Mr. Obama knows full well the result.  Why, then, does he advise African leaders to run things according to the law the way America traditionally has while here at home, he tries to make our governance more like Africa's failed kleptocracies and tribal chieftancies?