The Constitution is Neither Black Nor White

If the Constitution were a cookbook, we would not need a Supreme Court to interpret it. The fact that people can go to the same law schools, study the same law books, arrive on the Supreme Court and split on a 5-4 decision is evidence that something other than pure law is affecting their judgment.

The precise role personal experience, race, ethnicity, etc., play in judgment raises can be troubling and problematic.

The case of senators, congresspersons, who switched their views on stem cell research or abortion when family members came into play is a sad statement on the extent to which self-centeredness dominates judgment. Reason, empathy, commitment to public welfare should have been sufficient to guide these legislators' thinking. Must we hope for some state legislators to sire gay children before we can expect them to support gay marriage rights?

On the other hand, per JonesM2, personal experience does not always yield what one would hope for. Some who have been victims of discrimination either deny their experience or discriminate against others.

As for the attack on Sotomayor for being a wise Latina, better, I think, than being an unwise EuroAmerican or anything else, as is the case for those waging the "nondiscriminatory" opposition.

Of course the Constitution is open to interpretation. That is precisely why we have a Supreme Court. However, using emotions, empathy or otherwise, as a philosophical base to interpret it is an invitation for justices to seize power and right what they see as wrongs directly from the bench, skirting the inconvenient will of the people problem. We do not need kings to rule us, either hereditary or from lifelong appointments to the bench.

I have no problem with liberal presidents appointing liberal justices. That is how the Constitution foresaw it working. I just want to hear what the nominee's logical philosophical base for interpretation might be if they abandon original intent.

I'm from South Carolina myself, and it appears that Lindsay Graham (and his senatorial counterpart Jim DeMint) have yet to evolve through personal experience, as did their spiritual mentor Strom Thurmond. The GOP is a greedy bunch - conservative votes currently dominate the court, and that's exactly the way they intend to keep it.

They're disingenuous to the maximum in their questioning of Sotomayor - forcing her into a traditionalist/ideological judicial box completely free of personal insight based on life experiences. No activist judges need apply! Unless they're far to the right of center, of course.

Ironically, Congress votes based on emotions almost continuously - or by proxy, the emotions of their constituents. I suppose that rightwing causes such as abortion, the death penalty, gun ownership rights via the 2nd ammendment, are not emotional issues for Graham/Sessions constituents?

And these two Deep South good ole white boys have the gumption to imply that Sotomayor might be guilty of racism e.g. 'the wise Latina' remark?

I'm afraid her interrogation was too rich with irony, for folks with even a modicum of intelligence to avoid seeing.

But as the news analysis says, this was all about laying groundwork aimed at limiting the options for a 'liberal' nominee down the road - given that Sotomayor's nomination is pretty much a done deal e.g replacing a liberal with a liberal.

But when the balance of the court and it's sovereign judicial power begins tipping toward the center with any future nomination, the rightwingers won't be so 'kind'. I guess then we'll see what they're really capable of - or don't we already know?? We're just now trying to recover from over 8 years of GOP rule.

The Constitution is neither black nor white. It is a living document which evolves with the ongoing interpretations of men and women of varied backgrounds and experiences. Evolution thrives on diversity and there is infinite diversity in infinite combination. I look forward to the opinions of Justice Sotomayor.

ALenMay

You wrote, "that while judges may use these experiences to give their best interpretation of the law, their life experiences should never get in the way of equal justice."

Should they use it as a "tool" to maybe get in the way of "equal injustice"?

Take care, be ready.

Sincerely, Thomas Paul Moses Baum.

HumanSimpleton

You wrote, "Actually it is the only means we have as a civilized society to make that determination.
In other words, it was right to own slaves in those times, but today it is not right"

You are wrong, it was "legal" to own slaves in those times that does not mean that it was "right".

You also wrote, "Things change, society changes, it is a beautiful thing that the Constitution allows us to change it, and determine what is right for us."

There is a difference between "legal" and "right" and actually that is one of the things that this country was supposedly built on.

If you remember, it was "illegal" for this country to declare it's independence, wasn't it?

Take care, be ready.

Sincerely, Thomas Paul Moses Baum.

I agree with Herb that the more life experiences -the better. It's been painful to watch the Sotomayer hearings as this poor woman repeatedly tries to convince these legislators that she is an absolute automaton. This has been a clear victory for the far right.

I agree with Professor Silverman that life experiences can help to broaden a person's outlook and, perhaps improve the capacity of a judge to exhibit empathy. However, I find it interesting that two people can have the same experience, say visiting a foreign country, and walk away with completely different perspectives. Some people, regardless of life experiences, seem to lack the capacity to empathize with others and remain unchanged despite these experiences.

Just because something is the "law" does not mean that it is right, remember, slavery used to be the "law of the land".
POSTED BY: THOMASBAUM

...it was right to own slaves in those times, but today it is not right.
POSTED BY: HUMANSIMPLETON

I agree that just because it's the law doesn't make it right - it just makes it legal. While it may have been "legal" to own slaves, not everyone (even then) would have agreed that it was "right." There were many people who knew it was wrong - and they worked hard to amend the Constitution to make it illegal.

I think it is unreasonable to expect life experiences to not inform judges' decisions. How could they not? However, I think that Herb is absolutely right - that while judges may use these experiences to give their best interpretation of the law, their life experiences should never get in the way of equal justice. Life experiences are a wonderful tool, but still just a tool.

Good job on another insightful article, Herb!

Just because something is the "law" does not mean that it is right, remember, slavery used to be the "law of the land".
POSTED BY: THOMASBAUM
==

Actually it is the only means we have as a civilized society to make that determination.

In other words, it was right to own slaves in those times, but today it is not right.

Things change, society changes, it is a beautiful thing that the Constitution allows us to change it, and determine what is right for us.

Unless one were to learn from "life experiences" and apply them then we may just as well appoint a computer to the Supreme Court. Doesn't it say something about people in the founding documents?

How does a person become the person that they are unless that person actually has "life experiences"?

Just because something is the "law" does not mean that it is right, remember, slavery used to be the "law of the land".

Take care, be ready.

Sincerely, Thomas Paul Moses Baum.