Monday, July 13, 2009

Sotomayor Hearings Day One: Obsectons to Sessions Statement o

"Second, this hearing is important, because I believe our legal system is at a dangerous crossroads. Down one path is the traditional American system, so admired around the world, where judges impartially apply the law to the facts without regard to personal views. This is the compassionate system, because it's the fair system."

Well as I have noted in a prior post applying the law isn't as simple as Senator Sessions is making it out to be since the wording of Constitutional passages are in numerous occasions vague or not directly spelled out. Both Justice Scalia and former Chief Justice William Rehnquist believe they applied the "law to the facts" in the flag burning case but they ultimately came to two very divergent conclusions.

"In the American legal system, courts do not make law or set policy, because allowing unelected officials to make law would strike at the heart of our democracy."

Justices may not make law or set policy per se but they certainly strike them down if they are deemed unconstitutional.

3. Down the other path lies a brave new world, where words have no true meaning, and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political or social agenda.

I reject that view, and Americans reject that view.

4. "We have seen federal judges force their political and social agenda on the nation, dictating that the words "under God" be removed from the Pledge of Allegiance and barring students from even private, even silent prayer in schools."

How does one ban "private, even silent prayer in schools?" Students can, on their own time and without the school's prodding, say a prayer before and after homeroom, before, in between classes, before and after lunch and before and after extracurricular activities.

"Judges have dismissed the people's right to their property, saying the government can take a person's home for the purpose of developing a private shopping center."
Sessions must be referring to Kelo v. New London.

He's right about this one. Judges can strip homeowners from their homes in order to build new shopping centers and that is outrageous.

6. "Judges have, contrary to longstanding rules of war, created a right for terrorists captured on a foreign battlefield to sue the United States government in our own country."

Actually, Senator Sessions is overstating the rights which these prisoners were given. These administration-declared "enemy combatants" are not allowed to sue. They are, however, allowed to challenge their status as "enemy combatants" through legal proceedings that offer them less protection than they would if they were tried in civil courts. Moreover, we don't know how many of these prisoners are in fact terrorists since many of them were not tried. Those who say they are terrorists are taking former Bush administration officials at their word.

7. "Judges have cited foreign laws, world opinion and a United Nations resolution to determine that a state death penalty law was unconstitutional." - among other things (like national trends in the states)

Sessions again is overstating how the Supreme Court reached its decision in Roper v. Simmons. Though he doesn't specifically mention the Roper case by name I assume Sessions must be talking about this case which concerned the use of the death penalty on juveniles. The Court did cite foreign laws in its opinion but it was only one aspect of a multi-pronged argument that included this nation's "evolving standards of decency," and sociological statistics that point to a disparity in maturity between adults and minors. Now I have my own problems with arguments which base constitutional rights on an "evolving standard" of decency but that is besides the point. Sessions did not address those arguments. He picked one part of an argument to make it seem like we are losing our sovereignty.

8. "Like the American people, I have watched this process for a number of years, and I fear that this thinking empathy standard is another step down the road to a liberal, activist, results-oriented, relativistic world, where laws lose their fixed meaning, unelected judges set policy, Americans are seen as members of separate groups rather than as simply Americans, where the constitutional limits on government power are ignored when politicians want to buy out private companies."

"Unelected judges" do not set policy. Supreme Court justices can on those rare occasions when they are asked to hear a case where a law's constitutionality is challenged. As to the question of hyphenated Americans it should be noted that had minorities within this country been treated equally they might not think of themselves as African Americans, Native Americans, Hispanic Americans, Asian Americans, Jewish Americans, gay Americans or women. Eliminate racism, xenophobia, sexism, religious bigotry, homophobia and the discrimination that follows and the aggrieved parties will begin to think of themselves as one group of people - Americans.

10. "I feel we've reached a fork in the road, I think, and there are stark differences. I want to be clear. I will not vote for, and no senator should vote for, an individual nominated by any president who is not fully committed to fairness and impartiality toward every person who appears before them."

Then don't.

"And I will not vote for, and no senator should vote for, an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices or sympathies to sway their decision in favor of or against parties before the court."

Then don't.

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