SOLO-International Op-Ed: Comrade Sonia

Michael Moeller
July 17, 2009

Although Sonia Sotomayor's connections to various organizations are important, they are a consequence. What is most important is the legal philosophy that lead her to aligning herself with such organizations. Georgetown law professor Randy Barnett [1] makes some great suggestions for clarifying the judicial philosophy and Constitutional outlook of the nominee--and of Congress.

When I first read about Sotomayor and her paeans to a judge's personal experience, my first thought was that this woman is a repugnant throwback to "legal realism". Barnett is the only person I have seen so far that has mentioned legal realism in connection with Sotomayor. Legal realism was a judicial philosophy that grew out of the Progressive Era and eschewed logic, principles, and precedent in favor of a judge's personal experience and prevailing moral attitudes--whatever those may be at any given time.

Justice Oliver Wendell Holmes, considered the forbearer to legal realism, wrote the following in The Common Law (The Collected Works of Justice Holmes):

"To accomplish this task [an analysis of the common law], other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

One of J. Holmes's most famous opinions was his dissent in Lochner v. New York, marking the end of the laissez-faire constitutional era. In this case, the majority struck down a law that limited the maximum hours bakery workers were allowed to work. The majority held that this law infringed on the individual's freedom of contract and pursuit of a profession of one's choosing. In his dissent, J. Holmes argued that the Constitution did not embody any particular economic theory and that liberty is "perverted when it is held to prevent the natural outcome of dominant opinion". This is legal realism at work. It must be also noted that the majority's opinion is one of the most reviled in Constitutional law, and J. Holmes's dissent is considered "vindicated".

Jerome Frank, a prominent advocate of legal realism, wrote in Law and the Modern Mind:

"The decision of a judge after trying a case is the product of unique experience. 'Of the many things which have been said of the mystery of the judicial process,' writes [Hessel] Yntema, 'the most salient is that the decision is reached after an emotive experience in which principles and logic play a secondary part.'"

Any of this from Jerome Frank and J. Holmes sound familiar? Is it a mere coincidence that the progressive Obama appointed a judge with a legal philosophy that is a relic of the Progressive Era? When Obama was considering nominees, his stated purpose was to find a justice who employed "empathy". When one judges on the basis of "emotive experience", the flip-side, of course, is that judgments will also be made based on envy, hatred, "prejudices", or, as Jerome Frank is alleged to have stated, on what a judge had for breakfast. In essence, legal realism is subjectivism embodied into the law.

Do you want your legal disputes settled on such a basis? If you were on trial for your life, or a murderer on trial for killing a loved one, or you had a multi-million dollar contract under dispute, do you want a judge who dispenses with "logic" and the "syllogism" in favor of "unconscious intuitions of public policy", "prevalent moral and and political theories" of any given time, and even their particular "prejudices"? It is no coincidence that legal realism was shortlived as a formally taught doctrine--even though its impact remains--as it is impossible to mold legal principles around facts under such transparent subjectivism.

Legal realism is the essence of Sonia Sotomayor. When she hails "wise" judgments from "latina women", she is in turn dispensing with facts, logic, and any semblance of objectivity.

Promoting Sonia Sotomayor is perhaps Obama's biggest assault on liberty to date. There is no faster way to destroy a culture than through the rule of subjective law. Furthermore, the effects of judicial nominees will be long-felt after the president leaves office. Consider that many of FDR's policies were shot down by the Supreme Court until he threatened a court-packing scheme and promoted his nominees to the Court after others retired. As a result, we now live with the legacies of minimum wage laws, price-fixing, controls and regulations on various professions, health regulations and much more--all eventually passing the Supreme Court during FDR's reign. Worse, the Supreme Court took it upon itself to lower the constitutional threshold for economic regulations whereby the Supreme Court will simply rubber-stamp any policy by Congress that is not outright insane.

With all this in mind, Sonia Sotomayor is at the doorstep of being confirmed to the Supreme Court of the United States, and it is a sad day in America for the rule of law.

Michael Moeller: moeller_time@hotmail.com

SOLO (Sense of Life Objectivists): SOLOPassion.com
Links:
[1] http://online.wsj.com/article/SB124744026183929741.html

© Scoop Media