Saturday, July 18, 2009

Truly a remarkable document, the Constitution of the United States will be 222 years old on Sept. 17. Along with its 27 amendments, the Constitution provides our nation with the basic tenets that form the foundation for the rule of law that guides our judicial system and provides the framework for equal justice for all. In response to questions at her Senate confirmation hearings for Supreme Court justice this past week, Judge Sonia Sotomayor repeatedly indicated that her decisions as a judge are based on the rule of law and not on her unique experiences and perceptions as a Latina woman, wise as she may be.

Sen. Jeff Sessions of Alabama repeatedly questioned Sotomayor on a statement from one of her speeches, where she said a wise Latina judge would usually reach better conclusions than a white man. She responded by calling that remark a "rhetorical flourish that fell flat."

"It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that's clearly not what I do as a judge." Sessions also expressed concern about President Obama's claim that her empathy and life experiences were important qualifications for Supreme Court judge. This, Sessions claimed, described her as an activist judge (read "liberal").

Listening to Sessions describe the role of a Supreme Court judge, one would get the impression that the Constitution can only be read to have a singular meaning, no matter what combination of facts are brought before the court on any issue. If that were the case, then all Supreme Court decisions would be unanimous, which of course they seldom are. What, then, do you suppose would lead one justice to decide a case differently from another? Might not a white woman read and interpret the law a bit differently from a white man or a black man or a Latina woman? Why do we believe it's necessary and prudent to have members of the court representing different constituencies if not that they each bring a different and important perspective to the interpretation of the rule of law?

Perhaps Sessions' motives in attacking President Obama and Judge Sotomayor on the issue of "empathy" may not be completely altruistic. This is the individual who, in 1986, was nominated by President Ronald Reagan for a federal judgeship. During his nomination it was revealed that Mr. Sessions had previously said he thought the Ku Klux Klan was "not so bad of a group until I found out that some of them had smoked marijuana." Sen. Sessions also had referred to the NAACP and the ACLU as "un-American" and "Communist-inspired" because they "forced civil rights down the throats of people." Needless to say, his nomination was immediately killed by the Senate Judiciary Committee, which refused to even let it advance to the Senate floor for a vote. One of those voting against him was Sen. Howell Heflin of his home state of Alabama.

It is ridiculous to believe that any judge would make rulings based only on their own biases and prejudices rather than relying on the rule of law. At the same time, however, it is also ridiculous to believe that any judge can always interpret the law without in any way being influenced by his or her own heritage and experiences. When the Supreme Count issues a decision, there is often a split in the vote, which clearly indicates that some justices interpreted the rule of law in one way while other justices interpreted the rule of law in a completely different way. Thus the justices clearly disagreed on the rule of law based on their individual interpretations of the law even when given the same set of circumstances. This all-too-frequent scenario eliminates Sessions' belief that there is only one way to make a decision based on the law. In his view, apparently, that is the white man's way.

Not only are Supreme Court decisions frequently split, but often it is the case that even when two justices agree on a decision, it is not uncommon for their agreement to be based on the application of different laws to the same set of facts. That is, each justice based his or her decision on their interpretations of different laws as they may have related to the case in point. They got to the same place, but by considering different laws that relate, in their individual interpretations, to the same set of circumstances. For these judges to come to the same decisions using different interpretations of the law, it must be that they each brought something different to the table. All other things being equal, simple logic dictates that the difference in question had to be something unique to each judge.

Empathy is emphatically not a bad word. It is a quality Judge Sonia Sotomayor will bring from her heritage and experience to her view of the rule of law. I welcome that perspective as she administers equal justice for all.

John Andola, a Key West resident, is a retired educator and gay rights activist. His column appears in The Citizen on Saturdays. He can be contacted at jandola@keysnews.com.