Monday, June 1, 2009

Guest Post - Ranger Squirrel: Why Should You Care?

Ranger Squirrel decided to share with us his knowledge of law and what we should think about when considering the President's selection for the Supreme Court.

I also predict that a person or two will want to share their own opinion in the comments section ;)

Let me preface all of this by saying that while I do have a J.D. (a law degree), and I do follow politics like it’s a sport, I don’t agree 100% with any particular party and I am not a practicing attorney. I also want to state publicly that at the time I wrote this, I hadn’t made up my mind about the nomination of Judge Sotomayor to the Supreme Court.

What I hope to do with this post is educate those of us who need it about why the Supreme Court matters and why we should be paying attention to the nomination of a new Justice and explain some of the disinformation that’s being put out by both sides about her and her record.

As sad as it is, the defining characteristic of the U.S. political system is apathy. Americans, as a group, just don’t care about the day-to-day of our government. We care about our taxes. We care about scandals, whether they’re based on corruption, sex, money, or the holy grail…all three! We care about name calling, attack ads, and media bias right-wing or left. For those that wonder why we don’t elect the President by popular vote….this is why. The founding fathers foresaw this apathy and didn’t want apathetic masses being swayed by emotion (via scandal and attack ads) to vote…so they came up with a representative system similar to, but not exactly like, the one we have today.

This apathy, as bad as it is, is even worse when it comes to the Supreme Court. Unless we’re already particularly fired up about a particular issue, most of us couldn’t care less about the Court. Too many Americans write off the Court as irrelevant or unimportant. They couldn’t be more wrong. In two words, here’s why: Judicial Review.

Judicial review is the power of the court to overrule Congress AND the President on constitutional grounds. Congress passes a bill, the President signs it into law, and then the court can say….Nope….that’s not a law, because it violates the Constitution. Even if they’re wrong, We the People are stuck with whatever the court decided until Congress and the President figure out a way to fix it.

Believe it or not, this is not a power mentioned in the Constitution. In fact, it’s a power that’s only arguably implied by the constitution and then later emphasized by the court and granted to itself in a case called Marbury v. Madison. Moreover, it’s the foundation for many (but not all) of the most controversial decisions ever made by the court, and the court has had no shortage of controversial decision…it’s ruled on:

The privacy of your:
- Car (depends on what part of the car)
- Bedroom (yes, under some circumstances)
- Body (yes, then no, then it depends)
- Dresser drawer (No if the police have a warrant and even then it depends)
- Whether police can search you for being the wrong color in the wrong place (yes)
- Abortion (I’m not even touching that one)
- Birth control (yes)
- Can the government take your property for its own (yes)
- Assault weapons (yes, then no, then under some circumstances)
- Gay marriage (has yet to rule)
- Your right to a lawyer (once you’re under arrest)
- Whether you can burn a flag (yes)

There are many, many, many more.

So why the lesson in Government 101 as it relates to the Supreme Court?

Because President Obama just nominated Judge Sonia Sotomayor to be the next Justice of the U.S. Supreme Court and there is a LOT of disinformation being put out there right now.

MSNBC, biased as it is, predictably supports everything she’s ever done and routinely attacks the conservative groups that are attacking (or even questioning) her. That’s just unrealistic and irresponsible.

Democrats are praising her as a moderate and focusing solely on her ethnicity and tough upbringing. That’s only relevant to the extent that it colors her legal analysis. Does a Latina address legal issues differently than a white lady? Who knows. I’ve been married to my wife for 10 years and I still can’t tell you how she thinks.

Rush Limbaugh, also predictably, called her a racist, based on an admittedly ill-advised comment she made about Latina women being wiser than white men. (Some would argue that ALL women are wiser than most men, but hey…). Is she a racist? Who knows? Possibly. But it’s clear that Limbaugh was clearly looking for publicity…he even said, “AP? Are you getting this?” as he was spouting off his remarks.

Pat Buchanan, and many others conservatives, are quoting anonymous sources who say she’s a dumb bully. They’re also quoting misleading statistics like “she’s been overruled 60% of the time.” For the record, out of 674 opinions written by Judge Sotomayor while she sat on the 2nd Circuit, less than 10 have ANY negative treatment by the Supreme Court and most of those are purely on procedural (legal, not factual) issues…and that, almost by definition, is what being overruled means. That’s a record comparable to many and better than most Judges. Think about it…it’s only the hard decisions that get to the Upper Courts (like the Supreme Court and the Circuit Court Sotomayor sits on)…can you say that you’ve been legally right in 98.6% of your hard decisions? From a legal perspective, Sotomayor can.

Everybody and their brother has latched on to the comment she made at Duke about the courts making policy. They’re either unaware of or ignoring the fact that the next sentence she said included “I’m not promoting, I’m not advocating it…” – though admittedly, she said it with a hint of sarcasm.

Folks, this is the point of this whole essay. If we really cared, we’d know that she was merely stating a fact. Courts DO make policy, starting with Marbury v. Madison. It’s just how things are. Republicans are strong on defense, Democrats like to spend money on social issues, and courts make policy. For better or worse, it’s how our Democracy has functioned since its founding (minus the parts like the Civil War when it didn’t function very well at all).

So, my fellow concerned citizen, let me pose the question --- what should you do? Who should you listen to?

Me? Good lord no! I call my self Ranger Squirrel for goodness sakes!

Ideally, you’d read some of her opinions and come to your own conclusion. That’s what our founding fathers would have wanted you to do (as long as you were a white male).

I realize, however, that most of us me included, don’t have the time to do that.

So who do you listen to?

If you want my advice as a relatively unbiased, somewhat like-minded person with a legal education, listen to and watch Senator Patrick Leahy (D-VT). Yes, he’s a Democrat. But, he is also widely known for being fair when it comes to judicial nominations (including those made by President Bush) and his fairness counts because he’s the Chairman of the Senate Judiciary Committee…that’s the committee that, in reality, will make the decision about Sotomayor’s confirmation and will conduct her questioning before the Senate. Barring something unusual, as the committee goes, so goes the Senate, and so goes history.

But above all, educate yourself and don’t listen to the media. Political consultants and political action committees, regardless of which party or interest group they work for, are liars. By definition, they have a bias and they’re paid to get you to agree with them. Television and radio personalities, regardless of which side they take are after ratings. Ratings = sponsors. Sponsors = money. Money = job and celebrity.

Then, once you’ve made up your own mind, take action. Educate others. Write your Senator. Write other people’s Senators. Specifically, tell them what to ask at the confirmation hearings.

In my opinion, next to having a strong family/friend network, being aware is perhaps the most important preparedness tool…and that includes awareness of your government. No matter how much you disagree with it. No matter how much you agree with it. No matter how much you love or hate it. It has power over your daily life. The Constitution, and the Supreme Court, say so.

-Ranger Squirrel

Flea - "Thanks Ranger Squirrel! BTW I predict she will be confirmed based on what is available right now."

...that is all.

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  1. I agree Flea. Unless something odd surfaces (wouldn't it be hilarious if we find out she had an illegal Guatemalan maid or something?), she will be confirmed.

  2. This is an excellent post, and I appreciate the information.

    Good work!

  3. Jim,

    I totally agree! I think RS did a good job of presenting both sides of the argument fairly.

    His court history is also a powerful lesson that people should take to heart.