No free pass to get on the high court

Sunday, June 7, 2009

Just about everything I know about Judge Sonia Sotomayor comes from reading this newspaper. I am not a lawyer. I have no background in legal matters other than my own rare experiences with wills, trusts and probate matters.

Which means I am as sufficiently qualified as most Americans to hold an opinion on Judge Sotomayor's nomination to the U.S. Supreme Court.

Actually, I probably have a tiny bit better grounding in the legal system than some newspaper readers.

Over the past 40-plus years as a reporter and editor I have sat through many a trial considered important enough to warrant newspaper coverage. I have taken note of various court decisions -- enough to know that the law doesn't have a magic interpretation.

In our system of law there are two sides, and by their very nature those sides interpret the law differently. Lawyers earn their keep by taking one side or the other. Judges don't always agree with each other.

Which is why I find the certainty of some commentators and politicians regarding the Sotomayor nomination with a bit of skepticism.

Those who say they support Sotomayor point to her personal background and her legal experience. Those who say they have reservations about Sotomayor say they are concerned that her record and some public statements indicate she will, as a Supreme Court justice, make law rather than interpret it.

Making law is what judges do all the time. How any law is interpreted gives guidance and precedence to future interpretations of that law.

Take Missouri's Sunshine Law. This is a law intended to make sure government is open to the public. In fact, however, part of the Sunshine Law shuts off what government does from the public. Newspapers and other media outlets have, from time to time, taken legal action to open up government as provided by the Sunshine Law. In each of these lawsuits there is an inherent danger: If a judge rules against transparency, that decision becomes case law and will have a bearing on how the Sunshine Law is interpreted in future cases.

The significant point here is this: Laws are not set in concrete just because a legislative body approves them. Laws are fluid and open to the interpretation of judges and further review by appellate courts. In each step of this process, laws take on new applications.

And, yes, a judge's personal values, experiences and legal rationales play a considerable role in how the law is interpreted.

If laws were absolute, there would be no need for a supreme court. Any responsible person could interpret an absolute law. And, one might expect, the consequences of breaking a law also would be absolute. Every violation would result in the same penalty.

But that's not how our legal system works. Thank goodness. We rely on the training and wisdom and personal experience and values of those entrusted with being judges.

Here's another example: Every newspaper has its own way of doing things: what stories to cover, how to write those stories, which page to put them on and where to put them on the page, for starters. It's easy to look for absolutes in this business, too. Do we include this information? How do we spell this? Can we put this in the headline?

I've told more than one young reporter or young editor over the years that these decisions cannot be made solely based on a Book of Rules. If we could, we wouldn't need editors, just like we wouldn't need judges in a world of absolute laws.

Instead, journalists make decisions based on the value of the information to readers, the reasonableness of including or excluding certain facts and on our experience in writing all those stories and putting out all those editions that came before this one.

There is a consensus that Judge Sotomayor will be easily confirmed. That is a political decision, not a legal one. No nominee to the U.S. Supreme Court should get an easy pass to confirmation. Nine men and women have the last say about the laws of our nation. It's clear that the justices do not all agree all the time. Just five justices frequently get to make that call.

If Sotomayor has deficiencies that should keep her from being one of those justices, they should be exposed in the confirmation process.

The high court is on the cusp of changing some key interpretations -- just as it has done for more than two centuries: slavery, segregation, civil rights. And abortion.

With so much at stake, the political process of confirmation is crucial. Any serious effort to bar this nomination will take much more than political blustering. Absent the ability or willingness of U.S. senators to demonstrate that she is judicially defective, Judge Sotomayor will soon be Justice Sotomayor.

jsullivan@semissourian.com;

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