Sunday, July 19, 2009

Selection of a Supreme Court Justice and Sotomayor

Regarding nominee Sotomayor's comment that she would bring empathy to the Supreme Court, empathy is subjective and objectivity, not subjectivity, is what is required in a judge. A Supreme Court justice is human and will have personal subjective views like anyone else but this empathy or subjectivity should be left at the door. This is no more than is expected of each of us when we serve on a jury.

As far as the selection of a Supreme Court Judge, nominees are confirmed by the US Senate by a simple majority vote. Since Supreme Court Justices are confirmed for life, I think that there is an argument to be made that the confirmation should require a super majority vote rather than a simple majority vote. Judges confirmed by a super majority would tend to be more middle of the road and the confirmation proceedings would be less divisive.

It is unfortunate that the confirmation proceedings are more about Senators appealing to their constituents and grand standing rather than a real job interview. It would be helpful to know how a judge goes about interpreting the Constitution and the law. For instance, using part of the 2nd Amendment as an example which reads "the right of the People to keep and bear arms shall not be infringed" how would the nominee determine the definition of the word arms. Would it be appropriate to use available reference material written by the people who wrote the Bill of Rights such as the FEDERALIST PAPERS to reach a definition of the word arms? Assuming that the word arms was defined as any weapon that could be carried in a persons arms such as a rifle, would the word arms only include flint lock rifles such as existed at the time the 2nd Amendment was written or is it appropriate for a judge to 'update' the definition to include modern weapons that can be carried in the arms such as an assault rifle? How are limitations to rights justified and determined? For instance, using the above example, what is the constitutional justification for excluding the right to minors and convicted felons?

Also, how would a judge weigh competing constitutional rights? Take the rights of Freedom of Speech and Right to Privacy in the context of telephone marketing which are competing constitutional rights. How does a judge make a determination which by necessity limits the constitutional rights of one of the parties?

I'd rather know more about how a nominee goes about making a legal decision rather than hearing campaign speeches from the Senate.

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