Thursday, September 17, 2009

A human creature?

In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law. During arguments in a campaign-finance case, the court's majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong -- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have. Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

This should be interesting: this is an issue that conservatives, especially, though not exclusively, feel very strongly about.

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

Confirmation hearings revel nothing of substance about a nominee, other than her or his ability to dance around a question without answering it (and the efficacy of the coaching afforded the nominated by the nominating). In an article in the current issue of The New York Review of Books, Ronald Dworkin writes precisely about this topic.

It may be too late to save any future Senate hearings on Supreme Court nominations from farce, as the Judge Sonia Sotomayor hearings quickly became. Her hearings could ... have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.

In order to get confirmed with as little controversy and nose as possible, nominees say next to nothing of substance, if that much. Roberts did it, Alito did it, and so did Sotomayor.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center. [The organization has what might be called a determined, or presumptuous, mission: Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. Its URL is equally so:]

Progressive is the term now dear to those who are otherwise known as liberals,

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

He doesn't want to infer too much, but asserts that she's wrong.

Her long judicial and extrajudicial record suggests that she is markedly less driven by ideology and more respectful of technical legal argument than Chief Justice John Roberts and Justice Samuel Alito seemed before their nominations and have shown themselves to be once on the Court. [Dworkin]

No comments:

Post a Comment