Justice Ginsburg's Clumsy Constitution Criticism

During a recent interview with Al-Hayat TV in Egypt, United State Supreme Court Justice Ruth Bader Ginsburg was asked what the fledgling Egyptian revolutionary government should rely upon to draft new governing documents. Her responses were alarming yet predictable.

Much to the surprise of people in the conservative blogosphere, Justice Ginsburg argued that the U.S. Constitution would be a poor place for Egypt to start. “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012,” she remarked with all seriousness. Instead, she would look to more recently drafted documents such as the South African Constitution drafted in 1996, or Canada's Charter of Rights and Freedoms from 1982.

She justified her answer by reminding everyone that the U.S. Constitution excluded rights for (and input from) women, slaves and Native Americans. She provided no historical context during the interview for these omissions, choosing instead to leave the false impression that the Founding Fathers were helpless racists and sexists. Later on in the interview, however, she concedes with a chuckle that, “the men who met in Philadelphia were very wise...[but] they were lacking one thing, and that is that there were no women who were part of the Constitutional Convention.”

Nevermind that the Constitution also includes the twenty-seven amendments, many of which have served to eliminate disparities based on sex and origin for decades now.

Most critics of Justice Ginsburg's comments are merely appalled that a sitting Supreme Court justice would view our founding governing document so cavalierly. This is certainly a cause for concern. But while the problems with her comments go much deeper, she arrives at the right conclusion in spite of herself.

First, Justice Ginsburg's dismissal of our constitution in favor of others is clear evidence of the secular humanism that has infiltrated the highest levels of government and society, and the belief that the Constitution is a “living, breathing document,” and, therefore, ultimately meaningless.

Canada's Charter of Rights and Freedoms details numerous freedoms and rights, many of which are quite similar to language in our own Bill of Rights. The beginning of the document states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” However, neither the Charter, the Canadian Constitution nor any other founding documents I could find contains anything detailing the true source of the included rights. And, of course, as a member of the British Commonwealth, Canada received its rights and obligations from the Queen.

As for Justice Ginsburg's other preferred document, there is nothing wrong with the language in the South African Constitution. It is a lengthy document borne out of tremendous and violent racial struggles. It includes provisions for equal protection under the law and anti-discrimination, as well as rights to “dignity,” life, “freedom and security of the person...[and] bodily and psychological integrity,” “privacy,” freedom of religion, expression and many other rights. Some of the rights are expanded upon in the document. And most (if not all) of the rights listed therein are fine ideas that reflect rights found in our own Constitution. No one would conclude, for example, that elevating to constitutional magnitude a right to be free from enslavement is a bad idea, especially in a nation with a long and recent history of slavery and maltreatment of native ethic groups. Similarly to the Canadian Charter, however, there is nothing in the South African Constitution detailing from where these rights emanate. The Preamble's ending comes closest: “May God protect our people.”

Both Canada and South Africa now have fine documents that codify the rights of people. The problem is that both nations seem to have ignored where rights come from, i.e. God. The U.S. Constitution, while not mentioning the source of rights either, was formed after our separation (and eventual war) with Britain which was formally initiated by the Declaration of Independence. The Declaration makes clear that all men are “endowed by their Creator with certain unalienable rights” and that the signors were moving forward “with a firm reliance on the protection of Divine Providence.” Moreover, American founding documents are replete with references to the triune Christian God and how critical He was to the founders' lives and actions. It should be beyond dispute that the Founding Fathers were guided by their faith in Christ and recognized His supreme authority.

Whereas America's founding documents, including the Declaration and Constitution that followed it, are borne out of deep Christian faith and an acknowledgment of Him being the source of all that is good—including rights—the Canadian and South African counterparts are borne out of man's desire to bestow rights upon himself. This is an inherently secular humanist approach, one where man is believed capable of morality and self-governance absent God or religious faith. And it's perfectly acceptable to Justice Ginsburg, probably even preferable to acknowledging divine inspiration and direction.

People who believe the U.S. Constitution is a “living, breathing document” that should be malleable to fit current events and disputes also implicitly or explicitly hold this view. As the American people become “more enlightened” in their thinking and beliefs, they will recognize that additional rights need to be elevated to the constitutional level, so the theory goes. Abortion—no doubt an issue of premium significance to Justice Ginsburg given her as the ACLU's general counsel in the early 1970s—is a prime example. When Roe v. Wade was decided in 1973, neither the Constitution nor any amendment to it included language that could even remotely be considered tacit recognition by the Founding Fathers (and Mothers) of a woman's “right to choose.” Yet, a majority of Supreme Court justices found [eureka!] just such a right rooted in the “right to privacy”—a another right that is not included in the Constitution's language—and the “emanations from penumbras” of the actually written constitutional rights, which was first alluded to by Justice William O. Douglas nearly 20 years earlier in Griswold v. Connecticut.

Justice Ginsburg and fellow “living breathers” would doubtless argue that America had evolved in her thinking by the 1970s and appropriately rectified decades of wrongs by elevating to constitutional magnitude the right to abort. That is precisely the problem when man seeks to supplant God and become the provider of rights. If constitutional rights are given by man, then man enhances or restricts them at will. Man giveth and man taketh away.

If God endows rights, then man can only act with such power by usurping it from God. A “living, breathing document” is a meaningless document if it can be changed by the whims of men and women who act out of their immediate circumstances or current opinions. This is, unfortunately, exactly what has happened in the United States over the last 225 years--mostly over the last 100 years. The Constitution has evolved into a virtually meaningless document as unelected life-term judges, lobbyist-influenced congressional majorities, and power-hungry executive appointees have helped it “live” and “breathe” in ways the Founding Fathers could not have fathomed. Given man's history, we can imagine the same thing happening in Canada and South Africa much faster.

Second, Justice Ginsburg's implication that the Constitutional Convention needed women delegates is just bizarre. That's not to say a woman's perspective would not have added a different dimension. But has she cracked an American History book in the last half-century? Yes, in an utopian colonial world of the 1700s, all men and all women would have been absolutely equal, regardless of race or national origin. America was not utopian in the 1700s (what nation has been?) but it was ideal in that it was founded by men and women committed to their faith in God, and yearning for liberty and freedom. No other nation can make such a claim. Many colonists, including many of the Founding Fathers, abhorred slavery and wrote and spoke out passionately against it. Other nations would follow America's lead in ending slavery and discrimination in law and deed.

The other problem with Justice Ginsburg's suggestion that women should have been involved in drafting the Constitution is that she bases her comment on the false premise that women of the 1700s would have held different beliefs from the men of the same period. It is highly unlikely that colonial women would have held beliefs similar to "enlightened," "progressive" women of the present, like Justice Ginsburg. Certainly America's history is checkered and women have helped right some of those wrongs. But whole-scale changes to our founding documents would not have occurred simply if the men had given women equal seats at the convention. As far as “women's rights” are concerned, it would be laughable to suggest that colonial women would have convinced (or even thought to bring up to) their male counterparts to include a right to abortion, or women's suffrage, or free contraception, or gay marriage, just to name a few of the “rights” the National Organization for Women currently, zealously promotes.

It is troubling to hear someone charged with interpreting the Constitution claim the document is somehow deficient because of the historical context in which it was drafted. Indeed, the Supreme Court Justice Oath of Office states that a justice will “faithfully and impartially discharge and perform all the duties incumbent upon me as [a justice] under the Constitution and laws of the United States.” Remember, we have had justices who believe looking to the laws of foreign nations is a good place to find precedent for American legal cases and constitutional jurisprudence. Including Justice Ginsburg.

Are the constitutional duties of justices deficient, too, because no women were directly involved in the Constitutional Convention? Are Justice Ginsburg's duties merely guidelines from which she and her fellow justices can assert greater power and authority based on the “emanations from penumbras” of what is actually written? If the language in one part of the Constitution “lives” and “breathes,” why not the rest of it?

Finally, and in defense of Justice Ginsburg, the U.S. Constitution might not be the best place for Egypt to look for a document model. The United States was founded by people who yearned for freedom from an oppressive, distant regime, and believed in the goodness of God whom they worshipped. They desired to govern themselves and seek their own destinies led by their faith.

By contrast, Egypt has overthrown a brutal dictator and handed power to a coalition government led by the Muslim Brotherhood. Egypt has no real history of individual freedoms or democratic government. David Pollock of the Washington Institute for Near East Policy recently commented on the Brotherhood's double-speak regarding its plans and beliefs. For example, Pollock notes that while the Brotherhood promotes democracy in several articles on its English language website, there were no similar stories on its Arabic language site. Women and support for them are often referred to on the English site, but almost never on the Arabic site. While acknowledging there is some level of mixed messages from all political parties, Pollock cautions, “when this degree of duplicity is demonstrated, the group's credibility is, or should be, compromised accordingly.”

It is the Egyptian people who have elected the Brotherhood to a majority in their parliament. The Brotherhood has shown a strong fondness for Sharia and has tended to act with less tolerance while speaking about more tolerance. Presumably, the Brotherhood will be heavily involved in drafting new governing documents, including a new constitution. So their decisions will have status and force of law given by the Egyptian people. Will their document begin, "We the people"? Even Justice Ginsburg acknowledges this concern when she cautioned in the interview, "Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the constitution, first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor." I can give her an "amen" for that.

If we compare the Founding Fathers with the Muslim Brotherhood, perhaps it would be better for Egypt not to use the U.S. Constitution as a guide. Freedom and liberty only have true value if man acknowledges they are given by God and seeks Him to determine how best to protect and promote them. And he must yearn for the same for him and her. The Founding Fathers understood this, though they imperfectly executed it. I have no such confidence in the Muslim Brotherhood. If the Egyptian people yearn for freedom and liberty, they will rise up to protect and defend these sacred rights. However, if Americans can usurp power from God and restrict some constitutional rights while elevating other behaviors to constitutional status that would make the Founding Fathers scream in outrage, I am certain the Egyptians are capable of the same things in greater magnitude and shorter time.

Justice Ginsburg's suggestion that Egypt use Canadian or South African documents as models for her new government is not a surprise. It fits the justice's secular humanist, “living breather” view and the disdain she and other left-wing elites hold for America's founders. But it's not a bad idea in context.

Let Egypt follow Justice Ginsburg's suggestion. Let them use constitutions from other nations and draft their own documents where man bestows rights to man.

And watch how quickly man restricts or eliminates them.

Empathy: Sotomayor and Alito not birds of a feather

The MSM and liberal blog sites are attempting to conflate comments SCOTUS nominee Judge Sonia Sotomayor with “similar” comments made by current Justice Sam Alito during his nomination process. Cacophonous cries of GOP hypocrisy can be heard throughout as a major component of the liberal talking points. Don’t believe it.

It is true that during his confirmation hearings, Alito said, “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.” Does this statement suggest Alito has empathy? Sure, and there’s nothing to apologize for. As I’ve said in previous posts, judges are not automatons and the act of judging is not a series of precise, mechanical calculations.

Moreover, context, as always, is key. Alito’s statement was part of a longer response to a specific question from Sen. Tom Coburn, R-OK about “Sam Alito, and what he cares about, and let us see a little bit of your heart and what’s important to you in life”. Neither the question nor the answer was designed to seek information about Alito’s judicial philosophy. Alito also responded that he thinks of his own children when he is presented with a case involving children, his immigrant ancestors when deciding a case involving immigration, and disabled friends when a disability discrimination case comes his way. So, he’s human. Duh.

Note, however, the middle part of Alito’s answer most libs leave out: “And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result.” In other words, Alito is not saying that his feelings, heritage and upbringing are insignificant or the guiding forces in his decision making. They are merely a factor as he applies the law and are not a basis for bending the law to fit his feelings.

Compare Alito’s comments and their context with those by Judge Sotomayor. She delivered her quip that she, as a “wise Latina woman” would make better decisions than a white man, during a speech the UC Berkeley law school in 2001. Throughout the speech, Sotomayor stressed the significance of her past, upbringing, sex and ethnic heritage—sounds a bit Alito-esque, right?

Not really. She gave the address at symposium called "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation" and sponsored by La Raza—yes, the same La Raza that, for example, opposes a border fence and other security and illegal immigration measures, and supports driver licenses and in-state tuition breaks for illegals. Certainly a friendly audience for Judge Sotomayor to share her true feelings on race and gender. The entire tenor of her speech was a reflection on the revolutionary impact women and minority judges are having and will have in changing how cases are decided if we can just get more of them on the bench. Don’t believe me? Read the speech and see for yourself.

Her words speak for themselves. For example, in a challenge to another judge’s earlier remarks, Judge Sotomayor wonders whether the goal that “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law…is possible in all or even in most cases.”

In other words, Judge Sotomayor questions whether judges can ever use the law with fairness and integrity. Nothing remotely this radical can be read into Alito’s comments.

Given Judge Sotomayor’s membership in La Raza, her articulated views, her obvious bias now is being dismissed as poorly chosen words—though completely scripted for that specific occasion—and her documented problems with judicial temperament, it isn’t a stretch to think that Justice Sotomayor would use her racial identity and empathy to reach conclusions driven by those qualities instead of the rule of law.

The comments of Alito and Sotomayor are not the same. And when you see the difference, who would you rather be your judge? If you are anything but a liberal minority, does Sotomayor sound like someone you want judging your case?

The nominee and the empathy continuum

“Empathy” seems to be the judicial buzz word of the day. We are told that Judge Sonia Sotomayor, President Obama’s pick to replace retiring Supreme Court Justice David Souter, has it in abundance. This, plus her “personal story” appear to be Judge Sotomayor’s most important qualifications, at least as far as the MSM is concerned.

Admirable qualities, to be sure, but they are not the weightiest qualifications for the highest court, nor should they be. Lots of people, including many lawyers and judges, have compelling personal stories. No doubt their stories provide broad perspective and inform their decision making. As for judges, while empathy might cause a judge to rule with more deliberation, it is not a substitute for sound legal reasoning.

Judge Sotomayor’s legal reasoning has come under fire with her nomination. Most political junkies now know about fellow Circuit Judge and Clinton appointee Jose Cabranes’ dissent to Sotomayor’s opinion in Ricci v. DiStefano. Cabranes took the rare step of directly criticizing Sotomayor’s reasoning asserting it lacked a clear statement of the claims and provided a “perfunctory disposition.” You’ll soon hear about the Supreme Court unanimously (8-0) overturning her decision in the 2006 class action case Merrill Lynch v. Dabit and the high court’s 6-3 decision reversing her decision in the 2007 environmental regulation case Riverkeeper v. EPA, among other decisions.

My primary focus at this point, however, is on the fallacy that empathy should be atop the list of qualifications. It is important to understand that the Supreme Court is exclusively an appellate court, meaning you can’t just file your lawsuit there. Rather, every year the high court reviews the decisions the justices choose to review—a handful of decisions at that—based on petitions filed with the court. And those decisions were authored by judges who have already reviewed the record and one or more lower court decisions at the local level.

It is at the local level, where judges preside over hearings, jury and bench trials, take testimony, review evidence and make rulings, evaluate the credibility of witnesses, and reach decisions based on the merits, that empathy is critical. Real world experience can assist a trial judge in making sound decisions in cases every day because the judge is on the front lines, in the best position to evaluate and know when and to what extent empathy should play a role.

Frankly, by the time a case reaches the Supreme Court, it has been briefed, argued, reviewed and evaluated by numerous lawyers, law clerks and judges. The emotion and basis for empathy have been almost entirely excised. What is left is the smallest number of facts necessary to permit the Supreme Court to evaluate and rule on the decision they are reviewing, and the legal analysis used to accomplish this review. Empathy, while playing a role, is relegated to a minor consideration at this level.

Unfortunately, President Obama has it backwards. Empathy seems to be of paramount importance for his selection of a nominee. This is consistent with his stance during the campaign where he said:

“I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

He’s right in one sense. Judges should not be automatons that parrot back abstract legal theory in a vacuum without regard for the realities of claims and defenses. However, there is no justification for a Supreme Court justice to author an opinion based on whether people feel, for example, “welcome in their own nation.”

Put simply, the level of empathy that is relevant to a judge’s job decreases the further away from the trial court a case gets. The foot soldier who is on the ground is in a much better position than the general at the Pentagon to assess the immediate situation, evaluate the options and choose the best one based on the rules of engagement. If the justice system is a continuum, then empathy should be greatest in the local court and the least at the Supreme Court. And, of course, a judge should have empathy to all sides in litigation since neutrality is vital.

During a 2002 speech when she recounted a quote from Justice Sandra Day O’Conner that “a wise old man and a wise old woman will reach the same conclusion in deciding case”, Judge Sotomayor commented, “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.”

Strangely, even if President Obama is correct and empathy should be a critical element, he has chosen a nominee who by her own words doesn’t show it. At least not toward white men. Maybe that’s the whole point.