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I for one applaud the Republicans. To a man they have decided to vote down Judge Sotomayor and once again consigned their party to irrelevancy. They are attacking her for things which are just not true. She is not a liberal activist, in fact its hard to say that she is an activist at all. They criticise her for giving short judgements in three cases. Oh my! And they’ve also decided to play the anti-anti-race card, thus losing the Latino vote. Guys, have you not noticed that the Southern states are riiight next to Mexico? Have you not noticed that along with the influx of illegal immigrants, you’re also getting large numbers of legal immigrants? Do you not want to be re-elected? Seriously?

Look, I oppose Sotomayor too, though not as fervently as I once did. There are great gaps in logic on the Democrat side. How can you at once claim that cases which reach the US SC are those few cases where the law is not clear, then loudly proclaim that “the law controls”. How can you claim that a judges background doesn’t influence their decisions and boast about her life struggles? Let’s face it, the once respectable institution of the Supreme Court has been dragged through the mud by both sides of politics.

Sotomayor does not pose a threat in most instances. But there are a whole group of cases where her instincts on race pose a danger. The notion of the reasonable person pervades basically every major part of law. For instance, in negligence, the question is often asked: “Would a reasonable person have foreseen that damage would have resulted from his/her act?” Increasingly (in the Commonwealth at least) there has been a push by some to adopt a more flexible test, though thankfully the courts have thus resisted any temptation to yield. Instead of a single ‘reasonable person’ test, proponents wish to use a variant such as “a reasonable person with the ethnic background of the accused” or with the socio-economic background etc etc. It seems innocuous enough, after all.

This poses two key problems. Firstly, it entrenches into the heart of the law, a double standard. One standard for white people, and a second standard for minorities. It is not even clear that this is beneficial to minorities – given that the overwhelming proportion of judges are white, and the overwhelming proportion of lawyers are white, who is to say that the standard for the minorities will play in their favour? The second is more of a lawyer’s gripe. The reasonable person test is an objective test, to use factors, such as ethnicity, subjectivises it. NO! Bad! I hate to use the slippery slope argument, but the problem is there is no clear logical divide between factors we should consider, and those we should not. Once we accept the reasonable person has a race, do we also admit he has a socio-economic background? An educational background? Sexuality? Gender? Why not just take into account every factor like some multi-variate statistical model? What proponents of a raced reasonable person test don’t realise is that it is merely a legal fiction which allows us to set an artificial standard by which to judge all defendants equally. The reasonable person is inherently raced by reason of the fact that the tribunal of fact – the jury – is composed of 12 people of all races and backgrounds, each using his or her common sense to determine if a reasonable person (ie them) would have done the same as the defendant. To artificially bring in the question of race is to invite the lawyers to take turns at making terrible stereotypes and dressing them up as “instruction to the jury”. It contaminates the tribunal of fact, and as I said, it is not clear this would even be favourable to minorities. Separate is not equal.

I am not familiar enough with American law to hazard more guesses as to where race plays a part, but I am sure there are other instances where race could enter the equation. The affirmative action cases in Constitutional law spring to mind. The Republican’s strategy – if they are truly committed to a free and independent judiciary, which I doubt – should be to ensure that every avenue where race could play a part in the shaping of law is closed off to Sotomayor. Question her on them. Ask her- what do you think the state of the law is with regards to this area? Do you foresee a change? A true justice, as I believe Sotomayor is, is bound by honour to do as she says. Having questioned her thus, the Republicans can rest easy and confirm her. This is the congenial approach, and the one that will win the day in the long run, in the long cold days of opposition. Ranting and railing will not work, and never has. All it does is divide a nation that must stand strong behind the principles of justice. And, it will return to the days before Bork when Justices were assessed on their merits and when justices weren’t party-political.

Unfortunately, this approach contrasts quite dearly with the present approach. The Republicans fear that she will favour minorities in the cases directly before her. That is not where the danger lies. The danger lies in tectonic shifts of the law which expose and create double standards to ensure that separate is not equal. It is clear to me that the right no longer has the monopoly on claiming they are judicial conservatives. Whilst the old guard of judicial activists have been traditionally quite leftist, the new judicial activists are quite conservative. Chief Justice Roberts, Justice Alito pander to a neo-con agenda. Judge Richard Posner makes no attempt to hide the fact he will throw away any precedent in pursuit of economic efficiency. The hypocrisy is stunning, and it hurts the notion of justice and it hurts the notion of an independent judiciary. Both sides of politics need to shut the fuck up and return to the simpler times of yore.

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