Justice

If you googled the word "justice" yesterday you probably came up with hundreds of news articles. Justice was in the news. The President named a nominee for Supreme Court Justice and the California Supreme Court's justices issued their long awaited ruling on gay marriage. Starting with Washington: Sonja Sotomayor is certainly a historic choice for the Court. The first Hispanic nominee and only the third female in the high court's history. There is no doubt she is not a "moderate" or a "centrist". She is a liberal. She will be expansive in her view of the Constitution. Her decisions will read into the language things that are not readily apparent in order to achieve a certain result.
Conservatives are already caterwauling about her, but guess what? This is how it works. Obama won and he gets to appoint the Justices. Just as I felt George W. Bush was under no obligation to appoint "moderates" or "centrists" to the court, neither is President Obama. The Senate is entitled to advise and consent, but to me, absent some showing of disqualification for the job along the lines of past unethical or criminal conduct, the nominee should be confirmed. In the end, I expect Judge Sotomayor will win confirmation, probably by a large majority.
In California the Justices were busy dealing with those nasty little checks and balances. After they invalidated a statute prohibiting same sex marriage on constitutional grounds, those pesky voters passed an amendment to the state constitution prohibiting same sex marriage. This time the Supreme Court upheld the will of the people.
The Sotomayor nomination and the California ruling highlight the question of the judiciary's role in society. I do not think anyone disagrees that the world is very different than it was in 1787 and we face many issues the Framers never dreamed of. Slavery still existed, women could not vote, I really do not believe the Framers had any feeling as to same sex marriage or abortion. Free speech, initially thought to be limited to your voice or writings has evolved into a host of different mediums, remember the Framers weren't e-mailing drafts of the Constitution over the Internet.
So what do Judges do? Do they use their authority to push society forward in a certain direction, or do they allow the democratic process to operate and step in when the process has not functioned properly? Chief Justice Roberts has suggested that Judges are umpires and I agree with that. Their job is to enforce the rules. There is an additional role however that gets trickier: when the rules are not fair to all the players. Often that is somewhat subjective. There are the obvious issues: clearly so called separate but equal schools were anything but and the courts stepped in to eliminate what the democratic process had produced.
What about things that are not so clear? To some the case for allowing same sex marriage is as obvious and compelling as ending segregation. To others it is an affront. To many however, it is a process that the democratic process needs to work out, but if a Judge does not like the result, can he or she step in? The California Supreme Court has said "yes" and "no".
In the coming weeks we will learn more about Judge Sotomayor. I suspect her philosophy will lean more towards the Judges stepping in to achieve a result that is better, in her mind, than what the democratic process has produced. In California the democratic process is revving up again with more initiatives planned on same sex marriage.
"Justice" topped the news yesterday and after 222 years we are still trying to figure out what it means.