My thoughts on Judge Sotomayor, et al.

I have been hearing so much crap from the Conservatives about her appointment, I feel compelled to add my two cents.

IT IS THE JOB OF SUPREME COURTS TO MAKE LAW:
I am sick and tired of hearing people, many of whom are lawyers, insisting that the want a Supreme Court appointee who will APPLY the law, not MAKE law.
In our legal system we have several ways laws are made: One is by the vote of elected bodies, City Councils, State Legislatures and the US Congress. The Second is my the decisions of Appellate Courts. Appellate Courts are all State Courts of Appeals and State Supreme Courts, and the United Sates Courts of Appeals, and the U. S. Supreme Court. Every time an appellate court publishes an Opinion in one of the official sets of books that record such Opinions their decisions declare one or more principles of law, and some of those principles MAKE NEW LAWS addressing issues that have never been addressed by a legislature, or by any other court. This then becomes newly made law. Lawyers cite that newly made law in their briefs, and other courts will rely on that new law until and unless that new law is overturned by a higher court.
Many of the issues that come before a Supreme Courts are issues of law that have never been decided before, or they have been decided by a lower court of appeals and the Supreme Court is asked to review the lower court's decision. These are called Cases of "first impression". This is how our "Common Law" system works.
Now to be fair, in making new law Courts must be very careful in the legal reasoning they used to do so. They just can't create a new principle of law out of whole cloth. The new principle of law must be a logical deduction that results from the reasonable implications of established principles of law. Those established principles of law are called "precedents".
So let's be clear: one of the primary jobs of a state Supreme Court and the U. S. Supreme Court is to MAKE NEW LAW.

MEDIA REPORTS ON LEGAL MATTERS ARE OFTEN MISLEADING:
Another matter: When the media reports the decisions of Supreme Courts they emphasize the outcome of the case, not the reasoning of the court. In doing so they often distort what the court really did. .
For example: (this is a hypothetical, not a real case) Suppose a State legislature passes a law permitting gay couples to get married. Suppose also that a law suit is brought alleging that in the process of passing that law the legislature failed to hold public hearings which the Plaintiffs say are required by state law (relying on AN INTERPRETATION of a state statute.) The case goes to trial and the trial court finds that indeed the legislature did not hold public hearings. But the trial court interpreted the the state statute in question to mean that the legislature is not required to hold public hearings.
The case is appealed on an issue of the interpretation of a state statute: Does that statute REQUIRE the legislature to hold public hearings before it can vote on such an issue. The case goes up to the State Supreme. Court. The Supreme Court rules that the statute DOES NOT require the legislature to hold public hearing, therefore the new law permitting gay marriage was passes in a lawful manner. The Press then reports the outcome of the case with a headline: "State Supreme Court Supports Gay Marriage". Actually the Supreme Court said nothing about Gay Marriage. All they said was that the legislature did not violate the law in the way tghe voted on and passed the statute that permits Gay Marriages.
The point here is that people have to be careful relying on the press' reports on legal matters. Time and time again the media reports on court decisions in a way that gets the most attention, not necessarily in the way that is accurate.

JUDGE SOTOMAYOR'S FAMOUS QUOTE:
Apparently in a speech a number of years ago Judge Sotomayor said that she hoped that an experienced Latina judge would render better decisions than a white male judge who did not have her experience of life.
I certainly have no way of knowing what she meant, and I do not pretend here to do so. But as I heard that quote, here is what it made me think of.
Before any appellate court, including a Supreme Court decides a case they read the briefs submitted by the lawyers and then they conduct oral argument on the case. During the oral argument as the lawyers make their their arguments to the court, the judges interrupt the lawyers to ask questions. The point of these questions is to help the judges better understand the facts of the case and the legal issues in the case and to help them project how any decision they might render will play out in the real world.
The questions a judge thinks to ask are shaped by that judges experiences in life as well as their legal experience. Therefore, a Latina judge, or an Africa-America judge, who grew up in "the projects", or a Native American Judge, who grew up on an indian reservation will undoubtedly ask questions that a white upper middle class male judge, who was born and raised in Marin County, California would never think of asking (and visa versa). The questions that judges ask and the answers they get from the lawyers shape their understanding of the case. And, their understanding of a case influences the decision they render So, in some kinds of casss the minority judge will ask better questions than a non-minority judge. In other cases the non-minority judge may ask better questions.
Why no one else has proposed such an interpretation amazes me. We wont know what she intended to say until the hearings occur. But I would not be surprised if her explanation isn't similar to what I have suggested here. Time will tell.
Glenn+