Law and Justice

Law and Justice

Last week, prior to President Obama’s appointment of Appeals Court Judge Sonia Sotomayor to the Supreme Court, U.S. Sen. Jon Kyl made a sad, but not so surprising statement.
Speaking on “Fox News Sunday,” the Arizona Republican said he wouldn’t rule out filibustering against any Obama appointee who doesn’t decide cases based strictly on the law.
OK, fine, that’s what judges do. But he went on to say this:
“We will distinguish between a liberal judge on one side and one who doesn’t decide cases on the merits but, rather, on the basis of his or her preconceived ideas.”
Well, what does he mean by that?
Obama has said he wants a justice who can bring legal expertise to the bench as well as a wealth of lifetime experience.
Senators of Kyl’s ilk and conservative interest groups of the same opinion are afraid of such language. Some wasted no time Tuesday painting Sotomayor, who was first appointed to the bench by a Republican president, George H.W. Bush, as a liberal activist judge.
But is a judge really supposed to decide cases without any consideration as to what the impact on the public might be?
Taken to its logical conclusion that could mean the Supreme Court never should have overturned Plessy v. Ferguson, the 1896 case that made possible racial segregation in the South. Plessy was the law of the land, and the court changed it.
Roe v. Wade is the law of the land, too, but we’re sure Kyl would have no trouble reconciling a Supreme Court decision that struck that ruling down.
The bottom line is judges — dare we say this — are supposed to make law, at least from time to time. That’s the by-product of legal interpretation. Courts do this by putting the cases they hear to the constitutional test: Are they consistent, not only with existing statute, but the rights and liberties guaranteed by the constitution. In doing so the court may even consider the intent of the law as well as the actual wording.
Congress and legislators don’t always act to change bad laws; that’s why blacks couldn’t vote in the South for years, why they went to inferior schools and sat at the back of the bus. Congress, being a political body, did not reverse that appalling situation. It was left to the Supreme Court, and the court acted.
Judges don’t decide cases in a vacuum; they can’t pretend their decisions don’t affect the lives of millions. There’s a fine line between the law and justice, and the best judges know how to serve one without offending the other.