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Judges without personal bias?                                                                                    

Posted at: Jul/18/2009 : Posted by: mel

Related Category: The Law,

First of all, let me set the stage. It is the summer of 2009 and the U.S Congress is holding hearings on President Obama’s nominee for the Supreme Court Judge Sotomayor. During 4 days of questioning from Senate Judiciary Committee Judge Sotomayor responded to most questions with one of two possible answers. She either said it was settled law, or she said that she couldn’t answer because issue of the moment was being considered by a court. Sounds like a waste of time.

Judiciary hearings for Federal and Supreme Court justices are really kind of like a good novel. In a good novel sometimes we get more out of the back story than we do from what we think we are reading. So what was the back story of Judge Sotomayor’s hearings? First of all the Senators without directly bullying were trying to provoke the nominee to lose her composure and have an outburst of less rational responses. To her credit Ms. Sotomayor kept her composure. The nominee avoided expressing any personal bias on the contentious legal questions making them all sound like settled law. If everything is really settled law than the process of being a justice could be done by machine.

Weighing the virtues of complicated legal questions is a lot like admiring art. Even if we all agree that a particular painting is beautiful, we will have different reason why we admire it. Justices are by their very nature human. Each justice has their own accumulated life experience and character that slightly tilts how they judge an argument even within the scope of established law and legal prescient. Concurrently, there are differing philosophies on interpreting the U.S. Constitution with respect to a given legal question, so picking a justice is not like plugging in a machine.

There is by its very nature no such thing as “settled law”. All justices by their nature of being individuals bring a certain amount of personal bias to any legal argument before their bench. Judge Sotomayor kept her composure during the hearing making her confirmation to the highest court almost stuffred.

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