As I was reading the 13 July 2009 Washington Post article, Hearings Not Just About Sotomayor, I was struck by the comments of Sen. Jeff Sessions (R-Ala.), the highest-ranking Republican on the committee, in an interview on CBS’s “Face the Nation.” Senator Sessions reportedly said:
“She has criticized the idea that a woman and a man would reach the same result. She expects them to reach different results. … I think that’s philosophically incompatible with the American system.”
He added that he is “flabbergasted by the depth and consistency of her philosophical critique of the ideal of impartial justice.”
Now I didn’t see the interview with Senator Sessions, so it is risky to take his quotes out of context, but his comments seem pretty incredible to me. For though in America we do believe in “liberty and justice for all” and that “all men 
(and women) are created equal” have we really gotten to the point of total unisex thinking about men and women? Do we really believe that it doesn’t matter whether a male or female, black or white, youth or senior citizen are making decisions and judgements? To put it in Star Trek terms, are we all “Borg“? Even a young child can figure out that mom and dad do judge things differently and they appeal to the more favorable judge!
Equality for all does not mean we all are identical. The richness of society and democracy is that all people bring their ideas to the table and people do see things from different points of view. The very plea of minorities is that their point of view be included in political discussion and debate. This is something foundational to America which James Madison wrote about extensively – the voice of the minority must not be shut out by the voice of the majority. This is the temptation in any democratic society to uphold only the view of the majority as the basis for excluding the minority point of view. Republican Abraham Lincoln led the country to war over this issue because he understood that government of, by and for the people must include all the people, not just the powerful, the rich, the well placed or even the majority.
Impartial justice does mean considering the minority point of view, even if that point of view is decided against, it must be allowed to be voiced. E pluribus unum. Impartial justice means the many points of view are considered in shaping the one voice of the courts. Yes if we all were identical it wouldn’t matter whether the supreme court was all male, all white, all republican, all gay. But we aren’t identical, though we profess a belief that all humans are created equal. The divergent views are according to American democracy equally to be considered, but they are not 
identical. American is not a monolith and so we do have to consider how to incorporate into our great nation the many voices which make up our society. Having just finished reading Doris Goodwin’s TEAM OF RIVALS, I am of the impression that was the very genius of Abraham Lincoln: to consider all points of view as American and to work on preserving the union by including and incorporating all of those points of view which were not incompatible with the notion that all humans are equal and that government is of, by and for all the people.
July 13, 2009 at 5:52 pm
Not a particular fan of Sessions, however, think the full quote for the judge appeared some time back in the NYTimes and was that the opinons of a woman in a minority were of greater value than other folks, greater insight than the opinions of others. Not taking away that they will be different and the assumption of group think on the part of all others – which is equally to condemn them – there is some sense that there is some truth that the unheard voice does indeed need to be heard. I would argue however that today that voice also includes many folks of all spectrums… indeed that includes all folks not represented by high powered $’s of lobbyists or empowered as de facto favorite classes. And I am less certain that a voice that reaches the top of the elites of the establishment is that voice or remains that voice or even knows that voice any longer, but she’s not all wrong by any means. I think the she in question actually presents a puzzling mixture of voices and that this might be a good thing… and in balance, she may actually be a centrist.
I think the insight that has bothered me has little to do with the judge – who I expect to be confirmed no matter what the noise may be. What troubles me is that both conservative and liberal judges now rule from the bench in an activist perspective, and prefer rule-by-justice rather than rule-by-the-people. I am somewhat troubled by the complacency with which this is accepted in an increasingly cultural elitist nation, and feel this is an unfortunate tendency. We should prefer folks who re-inforce our democracy and re-inforce our community by forcing it to work… and pushing back on the other institutions – the legislature and administration rather than going around them… and teaching them to institutionalize dysfunction. There was a time this wouldn’t have worked… but now that our legislatures have been reformed by voting rights broadly enforced, the case that the legislatures can’t work is weaker than it was 50 years ago.
And somehow, the idea that we need to elect Presidential candidates BECAUSE they nominate Supreme Court justices just seems a ludicrous misplacement of priorities… but nevertheless a plank of both parties. I realize this makes me sound like something of a crank or a radical or anarchist… but it used to be a fairly common democratic position to trust the people. Dangerous? Yes. But after recent years, trusting the elites hasn’t worked all that well either.
Ah… forgive the rant.
July 13, 2009 at 6:33 pm
Regarding activist judges – I don’t really have a disagreement with you, but would point out that the Dred Scott decision in 1857 declared that blacks were not and were not intended to be included as citizens under the Constitution. Supreme Court Chief Justice Taney went on in that decision to declare the Missouri Compromise which congress had enacted as unconstitutional. He thus ruled on something that wasn’t even before the court! Politics is politics and politicians will take the fight to whatever arena in which they think they can win. It may be that the Supreme Court has to push back and send issues back to the legislative branch where they should be decided, but as long as people appeal to the court, the court is going to have a hard time saying “no, we won’t consider the issue” if for no other reason than human nature is what it is and given the opportunity those at the top are ready to render their own verdict whether it is in their authority to give it or not. Vice President Cheney for example made every effort to claim powers for the executive branch. The modern fight and accusations of an activist court are not new, neither is having an activist executive branch. If I remember right James Madison thought the Congress was the weakest part of the government – required too many people to agree to be very effective or threatening.
July 14, 2009 at 3:28 am
Good points. My point was more that conservatives had until recently been seen as strict constructionists… or at least folks who sought to divine the original intent, and that this has changed to a point where it is increasingly just another political institution… not the impartial judge it purports to be. You’re right – quite a political institution like any other. But that wasn’t the original intention of the impartial referee.
I’ve wondered whether term limits here might defuse the fights over nominees. Give folks 12 or some other number of years and out. Greater turnover would increase the representative correspondence to the sense of the people… and fewer the sense of being left out.
You didn’t say whether you liked the book and whether it was fair to its subjects. Folks have tended to give fanciful reads of Lincoln in recent years.. even that he was gay?!. LOL. Not kidding. The tendency to read things into the past is a disturbing trend not confined to the BIble. All I remember of reading his speeches was the consistent thread that he would basically walk through fire if he thought it would save the union. The rest… is less clear in terms of his values. And it is all too easy to read backwards…. knowing the results as if he had to know the Union would win… but he didn’t.
Anyway, as a Washingtonian, I used to watch Goodwin on Agronsky & Co. Neither as bon homme as Hugh Sidey nor as carefully detailed and consistent as George F. Will. I wasn’t a fan… but that’s probably unfair as Will was the up-and-coming star at the time…. now faded… and I’m certainly much more open minded and less conservative than in those days… so I’d have to say I in all fairness… a re-look is probably in order. Will used to blast her for reading into circumstances what she wanted to find. Yet she was well liked at Time and Hugh and others there thought highly of her. I haven’t followed her in recent years.
July 14, 2009 at 10:59 pm
Father Bless!
In Dred Scott, the Court was correct that blacks were not intended to be citizens. They merely applied the law as it was at the time, which is the appropriate duty of the Judicial branch. It was not until 1868, with the passage of the 13th Amendment, that blacks were considered, under the law, citizens. Courts, in my opinion, must be confined to the law as it stands. For that Court to say otherwise would have been a unconscionable expedition into the Legislature’s prerogative. The Court’s foray into questions not before them is regrettable, and proof positive that overbearing courts are not merely a modern problem.
We see that foray with, for example, the “emanations from a penumbra” of Roe v. Wade, the “mystery of human existence” clause in Lawrence v. Kansas, (a real tear jerker, that one), etc. Today, Judge Sotomayor made the raw statement that the Constitution contains a right to privacy. No one, to my knowledge, asked her to point it out, (which would have been amusing), but that assertion makes it clear she’s just another one of those judges who is happy to make things up as she goes along.
The whole point of my babbling is this: You made the statement, Father, that:
Equality for all does mean we all are identical. The richness of society and democracy is that all people bring their ideas to the table and people do see things from different points of view.
But we are A) not a democracy, but a Republic, and B) Judges do not have the luxury of bringing “their ideas to the table” the way you and I do in our daily goings on. They are, in a Republic, to apply the law as written, in its plainest terms. When we give up that idea, we give up protections for the minority, whether black slaves, unborn children, or neo-Nazi freaks marching in Skokie Illinois, as different “ideas at the table” mean that the law is malleable, and therefore unpredictable. It’s judges bringing their ideas to the table that have given the go-ahead to a government run amok.
Respectfully, and with hopes for a quick recovery,
Chris
July 15, 2009 at 2:55 am
Chris,
Thanks for your ever thoughtful reply and your good wishes.
I am not quite sure as you that in the Scott case the court simply ruled on the law as it stood. The court decided it had no jurisdiction over the case but then proceeded to make a ruling anyway. This is something one of the dissenting judges pointed out. I think the court proceeded to rule exactly because they were carrying out a political not a judicial agenda. That is why they proceeded to rule on other issues that were not before the court. They were endeavoring to legally impose anti-black law on the nation. They weren’t simply interpreting the law as it stood but took the law into their own hands and made the law themselves.
A correction to my comment which doesn’t change your comment or argument. What you quote from me should have read: “Equality for all does NOT mean we all are identical.” That was my typographical error which has been corrected.
While I share your concern over judges treating the law as malleable, on the other hand judges are human and they bring their humanity to the bench. Otherwise we really only need police to enforce laws not anyone to decide anything about the law. I see it as a very difficult balance. Judicial sentencing guidelines for example seem to me more humane than non-negotiable sentences. The trouble being how fairly can such guidelines be used? I cannot resolve what the proper balance in the courts should be but the very point of having a human judge is that circumstances matter and judges need some ability to consider these factors in their judgements. No fault divorce may have streamlined divorce proceedings in court, but it has also meant that some abusive, negligent or adulterous spouses are not held accountable for their actions and some spousal victims of them are victimized again in court by being denied justice.
Though this is not your point, I also do think that the advantage of having women in politics and serving as judges is that they can bring the perspective of the female to these offices. Yes they are bound by the law, but they can also see the world through their own eyes and within the bounds of the law bring the blessing of gender diversity to the courts and to the making of laws. Just my point of view.
July 15, 2009 at 11:53 am
Father:
I didn’t even notice the typo until I was proofreading my own comment. I had of course originally read it exactly as you intended. Funny how the mind works, isn’t it?
On the whole I think we agree. In Scott, while I submit that the Court was merely upholding the law as it stood, I do not mean to say that they weren’t more than happy to do so under the contemporary political climate. To rule otherwise would quite possibly have been worse, utterly enraging the South. (They had plenty of grounds to refuse Scott his freedom without voiding the Missouri compromise. Why they chose to take that provocative step, enraging Northern abolitionists, instead, is a mystery to me. I’m just not as sure as you that the Court was intent on making anti-black law, though you may certainly be right. )
As for sentencing, I agree with you completely, because it is, or should be, by its nature, a subjective judgment. I’ve never heard of a judge that considers the “mandatory minimum” sentences dictated by our “get tough” legislatures to be appropriate, as circumstances vary so greatly from case-to-case. But that is a different matter from interpreting law and the Constitution. Certainly, judges bring their experiences and their views to the bench. No one should be judged by an utter naif. But it is when they bring political points of view to a case, with the intent of enacting that political view, that we run into real trouble. The only political view that should be in evidence is the Constitution.
Regards,
Chris
July 15, 2009 at 11:58 am
I had forgotten to point out, in regards your statement:
The court decided it had no jurisdiction over the case but then proceeded to make a ruling anyway.
Yeah, uhh, well there is that. Proving once again that consistency isn’t all it’s cracked up to be. Good catch.
Chris
July 16, 2009 at 3:05 am
Glad to hear you are improving. From friends who have had knees cut, the first days are indeed the worst, but improvement is quick,and you soon forget about it. (Small comfort to you in these first days, I’m sure).
Praying for your quick recovery,
Chris
July 14, 2009 at 3:08 pm
I liked the book a lot – found it a fascinating and compelling read to the very end. It is very much in praise of Lincoln. She does address the gay issue directly and doesn’t think there is any truth to it whatsoever. She presents Lincoln as a very determined and deliberate man – though a backwoodsmen and perhaps lacking in international sophistication, he was a keen observer of humanity and understood his supporters as well as his rivals and even his enemies. He understood politics and didn’t take things personally very often which enabled him to use, work with and even rely on rivals and opponents. He time and again “out thought” his rivals and kept to the course he had chosen. He was criticized from every side and in his day was despised by many, but many of these folk in the end came to realize Lincoln’s genius. I give the book 5 stars. I am however not a historian and so some may criticize her use of the materials and the conclusions she drew. As the reader I had the advantage over Lincoln because she included excepts from his rivals personal letters – I know what Lincoln did not, and so it makes his choices and decisions seem incredibly sagacious. I also know how the story ends, which Lincoln did not so I am amazed at how steadfast he was despite the years of turmoil and apparent failure.
July 15, 2009 at 12:36 pm
I do agree with you and I know with judges bringing in that human factor is dangerous precisely for the reasons you alluded to in a previous email. It is only humans that can show mercy and wisdom. The law is the law. I go back to my old standard reference: A “Stop” sign tells you what to do: stop. That is the law. However, it never tells you to go. That requires human wisdom, and simply because you have the right of way doesn’t mean you don’t have to proceed with caution or even yield to a law breaker!
Yes the problem comes in when people try to force a political view on a case and you are right that the Constitution has to be the basis for the judgment, not one’s political preference. The fight over the supreme court appointees however shows that all politicians believe these are political appointments and have profound political implications for the nation. Thus they are always trying to push the court to the right or left.
July 16, 2009 at 12:42 am
Just briefly as this matter has been beaten to death…Heh…
Your stop sign analogy is spot on. Wish I’d thought of it. (Consider it stolen). ;-)
As for your statement:
The fight over the supreme court appointees however shows that all politicians believe these are political appointments and have profound political implications for the nation..
They are political appointees, and they have profound implications for the nation. The plain words of “shall not be infringed” were upheld by just 5 of 9 justices in the Heller v. DC decision. The words themselves, they understood just fine. The politics, they understood just fine, too. Not just sad, but dangerous, as George III found out.
Unfortunately, those who end up on FEDERAL benches are politically connected, and have to toe certain lines to get there. And as the federal government has systematically neutered the States, we live more and more under the dictates of these lifetime, federal political creatures. Kansas would outlaw abortion by popular vote were it held today. But abortion is a federal “right”, so they can’t even hold a vote on it without upsetting the powers that be. What that has to do with interstate commerce, the only Constitutionally effective way for the feds to interfere in State business, I have no idea. But that’s for another day.
Looking forward to a probable knee surgery of my own, I remain, respectfully,
Chris
(Sounds like it’s going OK. Good. See you soon, Father.)
July 16, 2009 at 2:09 am
I heard someone comment on term limits for Supreme Court Justices. Maybe that would help. I am always curious as to why those justices retire so rarely and are so willing to stay in office “for life.”
I think in Lincoln’s day justices were appointed from different regions of the country to keep some kind of balance. Different rationale but the same kind of effect. I know that Lincoln had to be constantly concerned about keeping his cabinet filled with a proper balance of people from the right states. Current practice no longer worries about balancing state-representation, now they must balance racial-ethnic-gender representation.
My knee is improving and I am getting needed rest. From my experience – first days after surgery are by far the worse. Each day has been better even if only slightly.