Saturday, July 18, 2009

People Are Missing The Bigger Point With Sotomayor's Comment

Lets pretend that Hell has frozen over: The Cubs win the 2009 NL Pennant and find themselves locked in a Game 7 of this year's World Series. You finally pick yourself up off the floor and tune in.

Its the bottom of the ninth, two outs and the game is tied. Bases are full of Cubs at Wrigley. History can be made here, as Derrick Lee stands in against Mariano Rivera. Rivera, gambling that Lee is looking for breaking balls and off-speed pitches, throws four beautiful fastballs straight down the pike. To anyone in the ballpark, even teary eyed Cubs fans, its obvious all four pitches were straight down the pike, strikes.

But something weird has happened. The Umpire behind the plate called all four pitches "balls".

Yankee's Manager Joe Girardi is LIVID, and understandably so. Even the normally mild mannered Rivera is converging on the Umpire, trying to figure out what in the hell he was looking at. The crowd should be cheering insanely, but there is a weird lull upon the celebration.

What was this guy looking at, Girardi and Rivera wonder.

"Look," the Umpire said, "how many World Championships have you guys won, huh? The Cubs have fought year after year, choked year after year, granted, but they've fought hard. Its their turn to win a World Championship. I've decided it to be so, so that's the way I'm calling those four pitches."

Girardi, at this point, needs to be restrained.... by Cubs players and managers, because the entire Yankee line up as clearing the bench to come after the Umpire as well.

How does this play in the trendy coffee shops of Manhattan? The liberal Yankee fans are beside themselves, rightfully so.

Or picture, this: I'm not 100% sure who interviews or hires Major League Baseball's Umpires, but for simplicity's sake lets say Commissioner Bud Selig does. An umpire of hispanic descent is in Selig's office, listing his qualifications.

"My life experiences as a Latino man will make me a better Umpire than the average white guy in the same situation," the interviewee says.

"What?," Selig responds, "how is that possible?"

"I'm in a much better position to empathize with the batter. What kind of life did he have before coming to the bigs? Does he stand a chance against that white male with the nasty stuff? Doesn't he deserve a fair shot?"

Selig should be (should be, don't know his politics) stunned at this comment.

"That has absolutely NOTHING to do with calling balls and strikes. A ball is a ball, a strike is a strike, no matter what the background of the players involved. The rules don't change because you have empathy for one player or another."

Again, smoke free coffee shop Liberal Yankee fan, do you agree or disagree?

If you agree with my conclusions above, then explain to me how Sonia Sotomayor's statements below (made to UC Berkeley Law Students in 2001):

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

would be any less idiotic, given the position that she holds and the one that she seeks? The purpose of an Appellate Judge or Supreme Court Justice is to interpret and apply the law.

There's been way too much attention, in my estimation, to the racial comment that Sotomayor makes in the statement above. Yes, it is a racist and elitist comment. And liberal minorities, spare me your emails and comments about black racism "not having any power to effect anyone". Racism, regardless of whether its white on black, black on white, is toxic, shallow and stupid. That's a conversation for another post.

The larger concern should be Sotomayor's statement and how it reflects on her view of a Judge's/Justice's role in the Appellate process. It is not her place, in these roles, to have empathy or apply "life experience", and her comments above give us clear indication that she views otherwise. Just as an Umpire in a baseball game (or football, whatever, pick your sport) is tasked with putting biases aside and applying the rules fairly, so should a Supreme Court Justice and Appellate Judge. Your job is to apply the law to the situation.

I think John Roberts did a fantastic job of making this point during his confirmation hearings. Typical of a Democrat, IL Senator Dick Durbin (who I like to call Dick), posed a typical, misguided question to then nominee Roberts (paraphrase): "I'm concerned, Judge, that you are not going to look out for the 'little guy' if appointed to the court."

Roberts nailed it in a very classy way (again, paraphrase): "If the law as written sides with the little guy, then I'm going to rule in favor of the little guy. If the law as written sides with the big guy, then I'm going to rule on the side of the big guy." Perfectly put.

Imagine Durbin interviewing the Umpire. He'd ask, "are you going to help the little leaguer succeed in the Big Leagues at 14?"

Roberts could be interviewing as the Umpire. The proper response would be, "If the Little Leaguer throws a strike to Manny Ramirez, I'm going to call it a strike. If he throws a ball to Manny Ramirez, I'm going to call it a ball."

Plain and simple.

Sotomayor's comments should cause concern because they imply that she feels as thought she has the ability and obligation, based on her "Latina" experience, to rule in favor of one party over another. Obama was very clear during the campaign, this was a trait that he valued in a Jurist.

According to Alexander Hamilton in Federalist 78, the Courts "have a duty to resolve cases impartially according to the law." (Robert J. Pushaw Jr, Heritage Guide to the Constitution, pg 232 - bold emphasis mine)

The Anti Federalist "Brutus", inserted this warning: "In their (Justices) decisions, they will not confine themselves to any fixed or established rules. This power will enable them to mold the government into almost any shape they please." (Quote also taken from Pushaw).

I list these two quotes to make the point - since Justices/Appellate Judges are given lifetime appointments, injecting personal feelings into rulings creates an unelected tyranny, not beholden to anything other than their own sense of right and wrong. For those of us who love free society and self-determination, this is a deadly prescription. Why have a Constitution, if we are going to tolerate this kind of Judicial Tyranny? If Judges/Justices can read anything they want into the Constitution, why bother having a one at all? Why not just eliminate the Legislature and Executive all together? Why not be ruled, de jure, by nine men and women in robes? Do you see the danger posed by this recklessness?

Empathy has a proper place with the Legislature and the Executive. Not with the Judiciary.

Do you see the real danger behind Sotomayor's comment? You should.

(Update, 7/19... I want to clarify something about the post above. Again, Sotomayor talks of "Life Experience" - i.e., "Latina Experience" enabling her to come to a better conclusion than a white male. Yes, its a racist comment, but the bigger concern in such a statement to me is this: ANY kind of "experience" in life should be completely and totally irrelevant to a judges/justices ability to interpret the law. Sotomayor seems to think differently, as do many advocates of the "Living Constitution". That's my entire point above....)