William Murchison / May 27, 2009

The View From California

The coming contest, fight, whatever, over Judge Sonia Sotomayor’s confirmation to our country’s top court gains context from the California Supreme Court’s 6-2 decision the same day.

The California jurists said voters last year were within their rights to pass a proposition barring the state from authorizing same-sex marriage.

The decision can be read as a victory for good morals: an approach with which I would not take issue. There’s more, nevertheless. The Californians held back from imposing on voters an ideology – same-sex marriage as perfectly fine for those who like it and, as for those who don’t like it, tough.

A decision of that character and thrust would certainly have created problems for states determined to keep alive the distinction between marriage and coupling. So also it would have reduced the California’s sovereign electorate to a collection of yellers and fist-shakers.

Not a pretty prospect: the people’s expressly conferred support for traditional marriage thrown out by a panel of lawyers fast to congratulate themselves for reforming the rotten, the used-up, the no-longer-relevant.

When a coterie of self-anointed reformers schemes against the people’s will, the outcome is about what you expect. It’s ugly. Distrust and anger multiply. On both sides. Interest in cooperation – on anything – diminishes among parties to the decision.

On the shoulders of Judge Sotomayor – who would seem an odds-on candidate for confirmation to the Supreme Court – rest expectations having to do with her presumed sympathy for “empathy.” The empathetic judge looks at the law but then glances above and around it. Hmmm, what should the law mean? Not what does it mean? Should.

I confess to a gross overgeneralization. Not even Earl Warren and Hugo Black, these long-dead prototypes of empathy, understood “should” in precisely the same term.

Here’s the point: A judge who sees law as a visionary ideal rather than the outcome of hard work by horse traders known as legislators isn’t going to – well, let’s back up to California and the just-decided case over gay marriage.

A judge with highfalutin’ notions about what’s right and what’s wrong isn’t going to let The People get away with contradicting him. He’ll take broadsword to a law he doesn’t like (e.g., the old, pre-Roe v. Wade abortion statutes), or he’ll put under his personal authority an entire public school system he sees as needing improvement in specific ways.

An empathetic California Supreme Court, on some premise or other (the plaintiffs’ contention was that the pro-traditional marriage proposition stripped gays of a fundamental right), could have lectured Californians on the need for a new order of matrimony. The court didn’t. Amazing – given that only a year ago the same court struck down an earlier ban on same-sex marriage as a violation of equal protection.

The point here isn’t, hooray, hooray for the suddenly enlightened justices of the Golden State. The point is, pause, see what can happen when a handful of lawyers decides, for whatever reason, what’s best for all of us and how fast we ought to do it: no whining, no flinching, just do it!

The irony in the Sotomayor case, of course, is that a president elected by a majority vote proposes to seat on the Supreme Court a woman he seems to value for her ability to ignore trifles like the will of the majority, or social peace, or a law’s actual meaning. The liberal – and Obama is a liberal – theory of judging involves the use of courts to do quickly what democratic debate, being unwieldy, can’t accomplish.

The judge whose place she will take, David Souter, nice and interesting guy as he was alleged to be, was himself a sort of empathizing, let’s-move-the-ball-forward kind of judge. Sonia Sotomayor won’t immediately change the tenor of discussion and judgment on the court, but assuming the President reads her rightly she will certainly try. As will all future Obama candidates for the court we may yet rename the Society for the Advancement of Empathy in America.


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