This has been a week of contrasts for our judiciary system. On Tuesday while the California Supreme Court handed down a decision that is the 21st century answer to Plessy v. Ferguson, President Obama announced the nomination of Second Circuit Supreme Court Appeals Judge Sonia Sotomayor for the US Supreme Court.
While the decision by the California Supreme Court upheld a discriminatory ballot initiative, it should not have been a surprise. The vote by the California Supreme Court was not even close as Proposition 8 was upheld by a 6-1 majority. The lone dissenter was Justice Carlos Moreno. Much of the coverage of the decision overlooked the important point that the vote was on, excuse the pun, straight party lines. All six judges who voted in the affirmative had been initially appointed by Republican governors. Moreno is the only Supreme Court justice in California appointed by a Democrat.
The reason for this decision had less to do with constitutionality and the merits of the arguments, but more with simple partisan politics. Since Jerry Brown left office in January 1983, California has had Republican governors for 22 out of 26 years. This more than anything else has influenced the makeup of the Supreme Court, and this decision, in California.
Party line votes do not occur on every vote in the California, US, or other Supreme Courts, but they are not unheard of, particularly on the bigger cases. In recent years, the most famous Supreme Court party line vote was, of course, Bush v. Gore, which landed George W. Bush in the White House.
For conservatives, however, it was a mixed day. While the California decision about Proposition 8 was a victory for them, the nomination of Sonia Sotomayor by President Obama was a reminder that the long term looks less rosy for conservatives. While some on the left may not be entirely pleased with the Sotomayor nomination, she is, in many respects, the worst possible nominee from the perspective of the right. Sotomayor meets or exceeds the resume requirements for Supreme Court Justices in recent years. She also enjoys a good reputation, and like the president who nominated her, a compelling, and even uplifting personal story. Beating up on a Latina woman who played by the rules, worked hard and rose to the top of her profession is not a strategy that will help the Republicans get out of their current rut, yet the evidence so far suggests they may not be wise enough to put down that particular shovel and stop digging.
What seems to irk conservatives is that Sotomayor, as well as many of her supporters, have suggested that her background may inform some of the ways she interprets the laws and therefore decides on future cases. Interestingly, none of these conservatives seemed to question whether the personal backgrounds of the six straight Supreme Court justices who voted to uphold Proposition 8 in California, informed their views or narrow definition of marriage.
The notion that it is somehow a problem that Sotomayor's background will contribute to her decisions and views is troubling. Of course, Sotomayor's background informs her decisions, just as Chief Justice John Roberts' background, and extreme ideological views, inform his. This is why presidents make appointments to the Supreme Court, and perhaps why we have a Supreme Court at all -- so that qualified legal minds can bring a range of backgrounds and experiences to bear on difficult and important legal and constitutional questions.
Although the inevitability of personal background and ideology having an impact on how justices make decisions should be axiomatic, there is still some superstition surrounding this issue. It is almost as if a "don't ask, don't tell" policy is applied to potential justices. Senators and others tacitly agree not to ask about ideology and personal views, while nominees agree not to tell too much. Instead, the issue which always seems to come up in hearings, from both sides of the aisle depending on the party which opposes the nomination, is how the nominee views the role of the court, an interesting question to be sure, but one that has become something of a red herring often obscuring the true nature of the nominee.
Many Americans, are less concerned with Sotomayor's views regarding the role of the courts, but understand the import of Sotomayor's background and are pleased to see our president nominate her. Many of us voted in November so that backgrounds like Sotomayor's could inform decisions made by our highest court.
This week, California showed us the judicial past where courts dominated by conservatives, unrepresentative of the people for whom they are determining laws, restrict constitutional rights. Judge Sotomayor and President Obama showed us the future. The Republicans must be aware of this too, but their desperation to try to stop this progress is already showing.
You claim "The reason for this decision had less to do with constitutionality and the merits of the arguments, but more with simple partisan politics...has influenced the makeup of the Supreme Court, and this decision, in California." If that were true the California Supreme court would NEVER have made the ruling last year allowing same sex marriage.
The same court ruled that indeed the people do have the right to change the constitution this week. That change was to make the constitution match California state law in defining marriage.
Learn the truth about the Tea Parties.
http://www.youtube.com/watch?v=-t_rCdR5Ti4
I'm shocked you're an assistant professor at Columbia... proves the point by Dennis Prager (Columbia Grad.) - "Only someone with an ivy league education could say something so stupid."
First, Calif. dominated by conservative judges - laughable!
Second, the symbol of the justice has a blind fold on. Why is that?
Judges represent (if you will) the law not politics, demographics or polls... Wize-up!
Justices don't represent the law. They interpret the law. The law, on the other hand, should serve the people.
But I will agree with you that the premise of the article is flawed. Not because it's laughable to think of California being dominated by conservative judges - actually, there are far more judges on the bench appointed by conservative politicians than by liberal politicians in California. But since the same panel of judges made the original decision recognizing gay marriage, it's a bit silly to now decide they're basing decisions on their personal feelings regarding the subject.
Of course, the decision they just made didn't actually have anything to do with gay marriage, despite all the media hype to the contrary. The question at issue was whether the California ballot proposition procedure was used legally.
Liberals complained that the Supreme Court over-ruled the will of the people and actually elected George W. Bush - so, now, they want the court to over-rule the will of the people AGAIN! Hypocritical.
So, next year, or the next, it comes up before "the people" again. And in that fair and proper election, it is decided, 52% to 48%, that same-sex marriages MUST be recognized. You're going to say, "OK, cool, it's the will of the people," right?
So let's go a step further. When that 52% votes to recognize same-sex marriage, they also vote that anyone who performs any marriage must perform all legally recognized marriages. No picking and choosing, if someone has a license, you gotta marry 'em. Because, after all, that's the will of the people.
And, oh, before you decide to toss out the "freedom of religion" argument - nope, sorry. Two problems with that. By your logic, the will of the people is all-important. You don't get to say "the will of the people" when it's convenient, and "my rights" when it's not. And second, you have no problem with "the will of the people" trampling on MY religious rights. My religious beliefs don't include a prohibition against same-sex marriage, but my minister isn't allowed to perform legal marriages now. So, only sounds fair that if the "will of the people" says so, your minister should HAVE to perform them.
And how many corporate boards have the rest of the gang served on? During the primaries this was a major concern of mine against Hillary Clinton, since I see a conflict of interest between serving The People and serving Wal-Mart.
Typical leftist style tht you have though. Do not look at the facts. Scream HATE or BIGOT instead of backing up your opinion with facts.
If this supreme injustice, the upholding of proposition 8, isn't reversed by the federal courts, this country, doesn't deserve my tax dollars, and it's citizens don't deserve my talents. And, to anyone who would have me ask their permission to get married, here is my middle finger, and go to hell!
We might be helped if our redisticting was no longer designed for the re election of incumbents but represent cities or in large cities neighborhoods instead of computer designed maps to further the interest of the dems or repubs.
Short of this we are going to need a 3rd or maybe 4 parties not based on a particular agenda (like the green party) but parties that will vote based on the wishes of their constitutents not the DNC or the RNC.
I live in Lubbock TX. City of just over 200,000. But this small city has a minimum of two and sometime 3 different US congressman (representatives) because the lines are drawn from Amarillo to Lubbock and the Midland/Odessa Area. The needs of these 3 cities (all in the 200k pop range) are completely different. This makes it hard for any of the 3 different areas to get what they want/need because the neighbor across the street may very well have a different representative.
I have seen districiting maps that run along highways and looks like a child's drawing. The majority of us voted for change and I hope we get it.
The only argument the challengers had was that it constituted a revision rather than an amendment of the Cal Constitution, a very difficult argument to make. Even the equal protection argument was rooted in the idea that infringing equal protection "amounts" to a revision of the constitution. There is considerable precedent to the contrary, so it was extremely unlikely the court would have agreed this was a revision. It's difficult to see how a liberal court could have ruled otherwise. The problem was the challengers had a weak legal argument because of the structure of the Cal Constitution, not because of the nature of their cause.
You forget the "Marriage cases" where this same court held the statutory equivalent of Prop 8 violated the equal protection clause of the Cal Const and struck that statue down - hardly an example of a "conservative court" hostile to gay marriage.
This time however, the constituion itself was changed, eliminating that argument. That, and the precedents on amendments and revisions pretty well dictated the results for this case. This decision is certainly not on a level of Plessy v. Ferguson.
The fundamental problem with marriage in the United States is that clergy are allowed to administer the civil contract of marriage. Yes, people have to obtain a marriage licence through the public sector, but practically any ordained "minister" can perform a legal marriage once that licence is obtained.
By giving the power of the state to the clergy to administer civil contracts, the United States has blurred the line between the Separation of Church and State and allowed religious bigotry to "define" what a marriage is.
If every citizen were required to stand in front of a judge to get legally married, the incoherent rants of religious bigots would be relegated to their proper, marginal place and this whole initiative to deny gay people the franchise of marriage would be a non-starter.
To that end, there should be a counter-initiative to deny the clergy the power to perform civil contracts. I'm sure such an initiative would lose at the ballot box, but it would highlight what is a fundamental flaw and inequity in the system and might make the religious think twice before denying others their civil rights.