Sunday, May 31, 2009

The Joke of Impartiality

My father is a lawyer. I have neighbors and friends who are lawyers and teach in law schools. My office "next door neighbor" is a lawyer. Some of my best friends........seriously, yes some of my best friends are lawyers. And if there's one thing I know from all of them, it's that they don't think, for one second, that any judge is "impartial" whatever that means.

Any good trial lawyer tries to get sympathetic judges and juries. Any good appellate lawyer tries to appeal to the predispositions of the appellate judges. And the reason the Founders set up a complicated selection process for the Supreme Court and judiciary wasn't, in my view, by accident. They understood that judges were never going to be "above the law" or "impartial."

The Founders had a very sophisticated understanding of law. Hell, read the damn Declaration of Independence. It reads like a legal brief. These guys weren't dumb or inexperienced in the law. John Adams cut his teeth as a lawyer, and they all had read Blackstone. They understood that "good" law should put some constraints on the arbitrary nature of power, but it wasn't perfect or sufficient to eliminate the risks to libery. They also understood that democratic politics had to be allowed to modify the course of government.

So it is with great pleasure that I tell the Left to seriously defend Sotomayor's argument that white judges reach "bad" decisions compared to Latinas. And to the Right I ask you how you can narrowly define "racism" as any generalization based on race when the term comes loaded with the experience of slavery, Jim Crow, lynchings, bigotry, and racial profiling? I ask the Left how its "post racial" President can play identity politics? I ask the Right why a bunch of white guys, fat white guys no less, are the ones crying foul here? If they are so racially progressive, where are the hordes of black and Latino Republicans defending limited views of the judiciary?

You can't separate law from politics. You also shouldn't equate the two. It seems to me she's an OK, not great judge, who fit a profile in a highly politicized decision. It also seems to me that using the "racism" card against her won't hurt the GOP in NASCAR country. For Obama, she's a bone to the Latino community, which both sides need to win this election. And it's not at all clear that most people even know who she is, let alone Latinos.

The problem is that there are no, universally agreed upon "GREAT" judges. They are not like baseball players or doctors. They are more like painters - you either like their work or you don't. You either agree with the outcomes and laud them, or you don't like the outcomes and call them "activists" or "closed minded" and you take you fight to other political arenas.

Mrs. Fundman and I got into a huge fight about her the other night, and that tells me something else - I'm going to be doing dishes for a while and agreeing with her more. That's probably the best thing that's come out of this.

1 comment:

  1. First: Don't fight with Mrs. Fundman. Second: Our phobia of all the "isms" (race, fat, age, etc), is a serious problem. We all view the world from our own perspective. Big deal. The trouble is when government (or any entity) uses force to advance the cause of political effort advantaged by use of an "ism."