What is the Role of a Judge?

Much has been made of President Obama’s choice of Sonia Sotomayor for appointment to the Supreme Court of the United States (SCOTUS). Considerable debate has raged over her comments, views and values, and qualifications. Many have criticized the assertion that Mrs. Sotomayor would exhibit ‘empathy’ during the discharge of her duties on SCOTUS, as she has done during her service on multiple benches to date.

“”He found all of those things with her, including his goal of selecting someone with the empathy factor — real-world, practical experience and understanding of how the law affects real people.” (Hamby, Henry and Malveaux)

    This ‘empathy factor’ has drawn considerable criticism. Many have decried empathy as a trait counter to the ideal of ‘Justice’. That is, an empathetic judge is oxymoronic. This avenue of critique is wide of the mark, and can be viewed by supporters of the President’s nominee as an ad hominem. Further, it ignores the constant declaration by the President himself that “words matter”, and I feel has missed an extremely subtle point.

    Presumably, all are familiar with the imagery of the blindfolded Lady of Justice. The availability of “fairness, equality” (Robinson) were and are the absolute fundamental underpinnings of the grand experiment that is America. That availability to all – without respect of persons – defines the American justice system as briefly and succinctly as any other description, of any length. Moreover, it is precisely the availability of justice for all that “the dreamers who thought America into existence” (Carlson) considered worthy of pursuit and establishment, and strove to institute.

    What is the role of a judge? In our justice system, the unalterable maxim is innocent until proven guilty. Evidence is presented against an accused, testimony is given on behalf of the aggrieved; be it a single individual, a group of alleged victims, or a representation of the community-at-large (‘the State’). The accused is then permitted opportunity to reexamine evidence already presented, present further evidence, refute previous testimony, or to introduce new testimony that supports their innocence. It is here that the notion of blind justice quits being a notion and becomes actionable. We as a society then trust a select few to balance the case against the accused. If the case is found lacking (or has a shadow of doubt), the innocent are declared as such, and set free. If the innocent have indeed been proven guilty, they are no longer declared innocent, and an appropriate penalty must then be adjudicated – hence the term and title ‘Judge’.

    To this point it is essential, actually sacrosanct, that Justice – the determination of guilt or innocence – be blind to all considerations other than the case against the accused. That is, the determination must be solely, unequivocally, and explicitly based on nothing other than the case as presented. Outside factors must not be a basis upon which the verdict is rendered. Social, economic, demographic, political, religious or any other dynamics cannot have any bearing. In other words, it is a binary decision: has the accused been proven to be anything other than innocent, yes or no?

    If the case does prove guilt, then and only then, could an argument be made that the need for the Blindfold of Justice has served its purpose, and may be laid aside. That argument contends that the facts and circumstances of each case are utterly unique. Therefore, the adjudication of a penalty may rightfully consider something as ethereal as an ‘empathy factor’ as expressed in a recognition of “how the law affects real people.” This argument may have merit; supposing that empathy for the guilty is balanced with sympathy for the victim(s). It may be that there is room is the justice system envisioned by the Founders for such a concept as compassionate justice. I’ll choose to walk away from this proposition and return to the pursuit of a more subtle point.

    So far, our legal system appears to mimic most every system that came before. Our Founders did not leave it as merely a copy. They chose to make it more hardy, more robust, and self-correcting. While not unique strictly to America, our justice system incorporates what I’ll refer to as a second tier. The first ‘tier’, I’ve described above. It is here where the case against the accused is presented, and innocence or guilt is determined. However, our second ‘tier’ is the appellate system – or subsystem, as it were. It is this secondary series of courts that does not place emphasis on the concrete elements of the case: evidence and testimony. Rather, the appellate courts examine whether the process and procedure for the determination of guilt or innocence was seemly, fair, and legitimate: was Justice blind?

    Many tests exist for confirming that the verdict was arrived at through permissible means. Stated conversely, there are legion ways that Justice can be swayed inappropriately, and thus be perverted. Evidence can be mishandled. Witness tampering or perjury could lead to false testimony. Inappropriate procedures can (and do) readily lead to a conviction being overturned. These ‘technicalities’, while cumbersome and frustrating, serve a higher purpose: that justice truly be equal for all. Likewise, corrupt processes can lead to corrupt justice. Inadequate/improper instructions to the jury, a lack of impartiality of court officers, imposition of preconceptions or prejudices (root meaning: judge in advance) all taint the fairness of the trial. That taint extends to and calls into question the outcome of the trial. For all these (and others) reasons, these infractions are impermissible: Justice must be above reproach and impropriety.

    This need for the inviolate purity of Justice gives reason to the appellate court system. Just as the determination of guilt or innocence is binary, so too is the question that forms the basis for an appeal: was the process that determined innocence or guilt fair, yes or no? Yet, there exists a dilemma with allowing trial courts to be ‘second-guessed’. By what standard is ‘fairness’ to be defined; how is it possible to clarify what makes a trial process ‘seemly’ – what makes a trial ‘legitimate’? Are these lofty, yet nebulous, terms to be determined by each appellate court acting on its own? What if the appealer still feels aggrieved by the ‘system?’ Is it possible to appeal an appeal?

    The Founders provided a grand solution to this dilemma and its subsequent questions. The solution is the Constitution of the United States of America. While this sacred document may not provide a black-and-white, ready-made direct answer to each and every question about the legality and legitimacy of court proceedings, it is the basis upon which such questions are to be tested. In short, trial courts determine innocence or guilt; appellate courts determine the constitutionality of the laws, the trial courts, their procedures, and the rationale for the verdict (was it based on the merits of the case, or outside influences).

    At last, we come to the aforementioned ‘subtle point’! Mrs. Sotomayor has an established history as a judge. Among many other notable life activities, she has been an Assistant District Attorney, a U.S. District Court judge, as well as serving on the U.S. Court of Appeals. Her rulings and writings are available, yet they do not speak to the point I raise. With the selection to fill an opening on SCOTUS, Mrs. Sotomayor is not being nominated to be a judge: she is being nominated to be a justice. Is this merely a semantical splitting of hairs, or a valid distinction? I prefer to accept at face value the phrase that ‘words matter: words have meaning’.

    As a justice, Mrs. Sotomayor will no longer be the decider of guilt or innocence. A justice of SCOTUS does not adjudicate penalties for the guilty. She will no longer be allowed to entertain the notion that Justice can remove the Blindfold and consider circumstances or how the law ‘affects real people’. In point of fact, by definition, SCOTUS justices must not remove the Blindfold – to do so is antithetical to the purpose of SCOTUS. Rather, SOUTUS exists solely and exclusively to consider one question and one question only: does a given law or process meet the criteria of ‘being constitutional’? To do so demands that there be no expression of empathy, sympathy, or emotion. Further, there is no higher court to which to appeal a decision by SCOTUS – it is the Supreme Court.

    The differentiation between judge and justice is a much more compelling reason by which to oppose the confirmation of Mrs. Sotomayor. By stating that the principle goal of the President was to select a candidate who exhibited “the empathy factor”, President Obama stated the principle means of dis-qualification. The SCOTUS is inherently and patently un-empathetic. If empathy is Mrs. Sotomayor’s primary qualification, it is therefore the primary flaw in her nomination to this particular office. SCOTUS is to evaluate – blindly – the validity of a law or process based entirely upon the Constitution: not social whim, international sentiment, a personal emotion or notion of fairness, or even for that matter the effect(s) of its constitutionality. That is, how can SCOTUS perform its constitutional test in the presence of anything other than the Constitution?

    The Scale that SCOTUS is to use has two platters: one for the Constitution, one for the naked law or process under consideration. There are no allowances for a ‘tare weight’ in the form of empathy, emotional consideration, or personal prejudices. It is to be a brutally diametric examination. This is true irrespective of the person (justice, nominee, or President), or the political philosophy to which they subscribe. To suggest that Mrs. Sotomayor’s empathy factor is anything but an encumbrance to her suitability to sit on SCOTUS is misleading, disingenuous, shows a fundamental lack of understanding the role of SCOTUS, or all of the above mixed with purposeful intellectual dishonesty.

    One last point for consideration: is there a number or percentage of rulings that have been reversed that demonstrate a given judge’s inability to rightly discern constitutionality on their own? Even without conducting exhaustive research (because it’s, well… exhaustive!), Mrs. Sotomayor has been reversed on more decisions that made it to SCOTUS than have been upheld. At what point does it become evident that Mrs. Sotomayor need not be placed in the court of final appeal – precisely because there is no further arena to pursue redress? While I do not presume to believe or know that there is a ‘hard and fast’ number or an exact percentage, I do submit that it is an extremely salient point to consider. Such reversals may point to a judge’s consideration of circumstances rather than facts, or the imposition of pre-held beliefs which colored the outcome of the case even before it was presented. Either of which are inadmissible in the determinations of the highest court of the land.

    While Mrs. Sotomayor may have a long, fruitful record of service from the bench, I find ample reason to oppose – or at a minimum, deeply question – her nomination and appointment. While the nomination by the President at the advice and consent of the Senate is an absolute prerogative of the President’s office, I find that the distance between the stated goal of an ‘empathy factor’ and the requirement to administer blind justice alarming and disturbing. True, this flaw is to be found in President Obama and not in Mrs. Sotomayor, it should nevertheless be applied to the subject of the nomination – Mrs. Sotomayor. Likewise, that Mrs. Sotomayor has not refuted the assertion that she possesses an empathy factor, or that this factor augments her qualification, makes her either complicit in the flaw or unaware of its existence. Neither compels belief in her competence to faithfully execute this particular constitutional office.

 

 

 

 

 

Works Cited

Carlson, Douglas E. “Liberty & Justice.” January 2007. The Eco-Logic Powerhouse. 6 June 2009 <http://www.freedom.org/board/articles/carlson-107.html>.

Hamby, Peter, et al. “Obama nominates Sonia Sotomayor to Supreme Court.” 26 May 2009. CNNPolitics.com. 6 June 2009 <http://www.cnn.com/2009/POLITICS/05/26/supreme.court/index.html>.

Robinson, Matthew B. “Issue in Depth from Justice Blind.” 2002. Justice Blind. 6 June 2009 <http://www.justiceblind.com/issue.html>.

 

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