Monday, June 01, 2009


I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male (as a jurist) who hasn’t lived that life -- Judge Sonia Sotomayor, 2001

Some decisions she’s made do raise questions about whether she will decide cases based on the law or her personal outlook and feelings and preconceived notions. We will want to examine that carefully, to make sure she will decide cases based on the law, not on how she feels about them -- Senator Jon Kyl

President Obama agrees with Judge Sotomayor’s judicial philosophy. He disagrees with Senator Kyl. He believes personal experience is a way of understanding what the world is like. He has criticized the Warren Supreme Court because it failed to do things for the disadvantaged like redistributing income. He believes the Supreme Court should be doing things for people and not just safeguarding them from negative things. There are disadvantaged classes, and the court should have empathy. That is his judicial philosophy, and Ms. Sotomayor’s.

As is well known, Sonia Sotomayor has been chosen by President Obama to fill the Souter vacancy on the U.S. Supreme Court. She is now on the Second Circuit (federal) Appeals Court. She has empathy. She has said that the circuit courts make (and should make) policy, knowing that the Constitution does not permit it.

What does a judge do? Chief Justice Roberts gave an analogy. The judge is an umpire. He calls the balls and strikes. He doesn’t design or change the rules of the game. That’s how it is supposed to work. The judge’s courtroom is a level playing field where even the visiting team can win if the law, the objective law, is on its side. Justice is blind. The umpire is there to see that justice is done, not made up.

The statue of Lady Justice has a blindfold over her eyes. Justice is and should be there for all. Justice governs by rule of law, not of men.

Rule of law was well understood by our Founding Fathers, who were educated in the classics. Two thousand years ago, Aristotle and Plato understood rule of law and espoused it. In 1215, when King John signed the Magna Carta, he adopted it for himself and perhaps for those who would rule after him. Thomas Paine, in 1776, during the War of Independence, wrote in Common Sense , “The law is King. For as in absolute governments [dictatorships], the king is law, so in free countries the law ought to be King, and there ought to be no other.”

Rule of law is weak in most of Asia but is fundamental to Western democracies. Or it has been till the last few decades when law schools have been teaching legal realism, the Obama-Sotomayor view. It was called “critical legal studies” or “critical race studies.”

Is the automobile industry being dealt with by the rule of law? The Constitution, Article I, Section 8, says that there shall be “uniform laws on the subject of bankruptcies.”

But the Obama Administration has prescribed something different in the Chrysler bankruptcy. But bondholders are slated to be given only 10% of the value of the corporation, the union will get nearly 40%, and the Government will get 50%. The bondholders are the only secured creditors. They should come first but “have been browbeaten by an American president into accepting only 30 cents on the dollar of their claims. Meanwhile, the United Auto Workers union, holding junior creditor claims, will get about 50 cents on the dollar.” The Government will get the remaining 50%. The rights of senior creditors are plundered, benefiting junior creditors.

Besides bondholders, Chrysler dealers have been plundered, hundreds of them losing their dealerships, which will go to whom? No one knows. No one can find out. The Administration has not revealed the criteria for the losers and winners. Is this the rule of law or the rule of lawyers and politics?

A similar departure from the rule of law is likely to happen in the bankruptcy of General Motors, expected to commence June 1. Is the administration-dictated redistribution, like Chrysler’s, legal? How can this be? The President studied constitutional law, even taught it. Are we becoming “a rule of lawyers” as Andrew McCarthy maintains in National Review Online?

“We are a nation of laws, not of men.” We regularly reiterated it. Justice comes from rule of law. Times change. “Don’t tell me what the law is. Tell me who the judge is,” said Roy Cohn.

In the future, how eager will lenders be to lend money to the auto industry, or, say, another, the pharmaceutical industry, knowing its funds might be confiscated?—asks professor of law Todd Zywicki in The Wall Street Journal. Will the government confiscate a patent?

Thomas Jefferson lists in the Declaration of Independence inalienable Rights, among them Life, Liberty, and the Pursuit of Happiness. It concludes, "We hold these truths to be self evident, that all men are created equal—that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."

By Natalie Sirkin
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