In Washington, the Law is an Ass

In Washington, the Law is an Ass

By Richard Reeves - July 21, 2009

LOS ANGELES -- There was a seal of the Senate of the United States on the marble wall behind the chairman's seat in the hearing room last week where the Senate Committee on the Judiciary questioned Supreme Court nominee Sonia Sotomayor. They should have taken it down and engraved a Miranda warning: "Anything you say can and will be used against you ..."

Or, if you prefer something shorter: "Let's Pretend!"

To sort of paraphrase Winston Churchill speaking of the Royal Air Force during the Battle of Britain, "Never was so much said by so many to such little purpose." Talk about wasting taxpayers' money and media time: How do these people manage to keep a straight face while the many, the 19 members of the Judiciary Committee, and the one, Judge Sotomayor, spouted stylized and rehearsed lines at each other?

The senators faced the judge (and television cameras) all in a row, giving little speeches to their constituents. For the Republicans that meant making sure the folks back home in the South and West understood they were against abortion and gun control -- and did not think much of the idea that Latinas should be allowed inside the building for purposes other than cleaning it.

The Latina facing the other way was equal to the low level of the dialogue, showing a distinct talent for repeating, in lawyer-babble, a dozen or more different ways to answer (or not answer) the same questions. The kabuki was about 33 words and less challenging than Scrabble.

President Obama said one of them: "empathy."

Judge Sotomayor, famously now, uttered 32 of them in a speech eight years ago: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Judges, several senators argued, should never have empathy or lives. Half the political and biographical literature in the language would have to be destroyed for linking attitudes and judgments to life experience. Well, except in rare cases, like the presidential election of 2000, when the Supreme Court decided to choose George W. Bush as president because any further delay might make it more difficult to fool most of the people most of the time. Sotomayor checkmated that by saying she thought Obama was wrong. I could not tell whether her fingers were crossed as she spoke.

On the business of "wise Latinas" and life experiences, she checked them by saying the phrase was simply an inspirational and rhetorical flourish that did not work very well. I was hoping she would refer to the wise white men who ruled on the Dred Scott case, asserting in 1857 without empathy, sympathy or compassion that Mr. Scott was not a man but a piece of property -- adding significantly to the momentum toward the Civil War and the deaths of more than 600,000 of their countrymen.

She was willing to go further and she did when the Republicans asked whether she considered the Constitution a "living document" or just "static." She answered "static" -- which is ludicrous -- and if she actually believes that, which I doubt, the president made a huge mistake in selecting her out of the many wise Americans.

Courts are about so much more, to use Sotomayor's phrase, than "fidelity to the law." In fact, the law changes constantly, and usually positively, as a society and its problems change -- as it should.

I am the son of a county court judge in New Jersey. I knew where my father's empathies and sympathies and biases lay in the great questions of his time, politics and race, the power of public officials. That was in the privacy of our own dining room: He was a wise, biased conservative white Protestant Republican.

It was different in the courtroom. After my father's death, a great lawyer named Raymond Brown, the president of the NAACP in Jersey City, said he wanted to tell me a story. He said Judge Reeves in the 1950s had gone to the state's chief justice, Arthur Vanderbilt, and told him that there was something wrong in the courts, that "negroes" were getting significantly longer sentences in felony cases than white defendants. Vanderbilt sent him away, saying that he could not make an accusation like that without proof. My father went through years of cases and went back to Vanderbilt with the numbers -- and sentencing guidelines were changed.

It was Charles Dickens who wrote the line, "The law is an ass!" That is not true, but you would not know it if you were in Washington last week.

Copyright 2009, Universal Press Syndicate Inc.

Richard Reeves

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