President Barack Obama's
nomination of Federal Appeals Court Justice Sonia
Sotomayor to the Supreme Court has been denounced in overtly racist terms by
leading Republican spokespersons, including former Speaker Newt Gingrich, radio
personality and conservative icon Rush Limbaugh, and former Congressman and
immigration fanatic Tom Tancredo. Tancredo went so far as to compare La Raza,
one of the major defenders of Latino civil rights, to the KKK. Senate
Republicans have been more muted saying they want to examine her credentials and
judicial temperament. Right-wing organizations hope to raise millions of dollars
by painting Sotomayor as a radical judicial activist out to impose new laws,
laws that legislatures would never approve on their own.
Sotomayor is hardly the radical that
right-wingers portray, and her appointment is unlikely to shift the balance on
the Court. What she will do is bring a new set of badly needed life experiences
to the court, and, perhaps, help begin the process of moving the Court in a
different direction. Republican Senators are likely to focus on one of their pet
judicial theories, "original intent". DSA Vice-Chair Steve Max writes on this
for the upcoming issue of Democratic Left, and he has found an unusual
ally in James Madison.
The new issue of Democratic Left
will be mailed at the end of June. Here is Steve Max's on the Court
fight:
Judge
Sotomayor in Madison Vs. Limbaugh
The right-wing Swiftboat machine was rolling even before
President Obama could utter the name Sotomayor. She?s a judicial activist
they say, someone who will make policy from the bench and impose her own
convictions instead of simply stating the law, as if that is not exactly what
conservative judges do. Unfortunately, instead of challenging the right?s false
definition of a good judge, Sonia Sotomayor?s defenders are saying that of
course she isn?t an activist. The underlying right-wing premise is that
our Constitution and laws are crystal clear and all a judge should do is apply
them to the case at hand. That is wrong. James Madison said so and he
ought to know a thing or two about the Constitution.
Anxious to secure New York State?s
ratification of the new Constitution, Madison wrote a newspaper article entitled
Concerning the Difficulties of the Convention in Devising a Proper Form of
Government. [Federalist Paper
#37. From the Daily Advertiser. January 11th, 1788.]
Madison
addressed criticisms that the new constitution was unclear in its delineation of
powers between the federal government and the states, and also unclear about the
separation of powers between the branches of the federal government
itself. He said in effect; of course it isn?t clear, these are very
complex subjects and we did our best but we are only human.
?The experience of ages, with the continued and combined labors of the
most enlightened legislatures and jurists, has been equally unsuccessful in
delineating the several objects and limits of different codes of laws and
different tribunals of
justice.?
?Besides the obscurity arising
from the complexity of objects, and the imperfection of the human faculties, the
medium through which the conceptions of men are conveyed to each other adds a
fresh embarrassment. The use of words is to express ideas. Perspicuity, [clarity and precision of presentation]
therefore, requires not only that the ideas should be
distinctly formed, but that they should be expressed by words distinctly and
exclusively appropriate to them. But no language is so copious as to supply
words and phrases for every complex idea, or so correct as not to include many
equivocally denoting different ideas. ? When the Almighty himself condescends to
address mankind in their own language, his meaning, luminous as it must be, is
rendered dim and doubtful by the cloudy medium through which it is
communicated.?
?All new laws, though penned
with the greatest technical skill, and passed on the fullest and most mature
deliberation, are considered as more or less obscure and equivocal, until their
meaning be liquidated[shining and clear, flowing, fluent, or smooth]
and ascertained by a series of particular discussions
and adjudications.?
Remarkable! Four months after the drafting
is complete, one of the principle authors of the Constitution says that it is
neither clear nor written in stone for all justices to follow forever, but that
it is more or less obscure and equivocal, its meaning to be clarified by
adjudication. This is not a one-way street in which the Constitution and
laws determine the judgment of courts, but a two-way process in which the
meaning of the law itself is shaped by the judicial process. Policy will be made
from the bench after all. Despite its protestation, the Right knows this and
acts accordingly. If Sonia Sotomayor will be our activist judge, we should
say "good--and more of the same." The father of the Constitution would have
expected no less.
In solidarity,
Frank Llewellyn
National Director
Paid for by Democratic
Socialists of America, 75 Maiden Lane, Suite 505, New York, NY 10038.
