“OF COURSE, there’s no representation, you twit!”
On May 12, 2010, in a Philadelphia Daily News piece headed with her name and, after the colon, “Questions for Kagan”, columnist Jenice Armstrong became one of the few mainstream journalists to openly address the question “Is Elena Kagan gay?” This was a fine start, especially when she went on to say that it could matter “…because of cases that might come before the highest court in the land.”
She’s even okay when she says “I’d be lying if I said that I don’t really care whether Kagan, who was the first female U.S. Solicitor General, is gay, as has been rumored” and continues that “In fact, I’d secretly be thrilled since it’s high time that the U.S. Supreme Court had a gay member.” But when she says “My only wish is that if Kagan is homosexual, she would be open about it” and goes on to say that “While one’s sexuality doesn’t necessarily color one’s world view, I would love to see a proud, self-avowed lesbian on the court who, hopefully, wouldn’t shy away from advocating for gay rights” she not only goes far over the line, but betrays either her own political beliefs and committed agenda or a total ignorance of the purpose and function of the Supreme Court.
The Supreme Court is not a place for advocacy of anything at all other than the truth. Contrary to what she says elsewhere in her article about the nation’s highest court having come to expect diversity and a “,,,wider view than simply sex, ethnicity or religious background”, it isn’t about “…having different lifestyles and sexual orientations represented.”
The way the American judicial system works is both simple and utterly different from the imaginings of liberal political or gender advocates:
In the American system, the lower courts (“trial” courts) are “triers of fact.” They’re the ones that determine what the facts of a case are, and if or which laws have been violated. If there is controversy over the trial courts’ findings, either side – at least in civil law, where there is no issue of “double jeopardy”– can seek review of the case by a higher court (an appellate court or “court of appeals”, often with more than one judge). This higher court will generally concern itself more with the legal issues of the case or of the trial, (laws or rules of jurisdiction, of evidence, of procedure, or of any other kind, that may or should have been involved in the trial) than with issues of fact. Appellate courts often don’t rule on issues of fact, even if new evidence or new testimony is involved, but may confine themselves to reviewing only the facts or issues raised in the original trial and refer all else back to the lower court (the “court of origin”).
Supreme courts, whether at the state level, or the Supreme Court of the United States, are the second (or, in the case of the U.S. Supreme Court, possibly the third) level of appellate review for any issue, and generally hear and adjudicate only the findings of lower appellate courts.
With that being the case, where is the legitimate opportunity for advocacy? Or “representation”? How can one’s political views or moral, religious, or gender beliefs
– or even one’s interpretation of justice — play any role at all?
If the function of the Supreme Court of the United States is just to review another court’s case to see if that other court followed the law in trying it; or if the Supreme Court’s function is, also or instead, to review a law to see if that law is, itself, Constitutional; isn’t the only act proper to a Justice of the Supreme Court, other than to determine the meaning, proper application, and constitutionality of the laws involved, to determine the meaning and proper application of the Constitution, itself?
That’s where the opportunity arises to il-legitimately play the advocate: It’s called “Judicial Activism”, and it refers to actually changing the laws or basic structure of our country, not by changing the laws, themselves, but by the more subtle process of changing what the courts choose them to mean.
It’s like the guy whose name is spelled “S-m-i-t-h”, but pronounced “Jones”. In this Land of the Free, people have the right to pronounce their name any way they want to, regardless of how it’s spelled. But does the same right apply to our laws?
Should a Black or Gay or Hispanic judge or a judge with particular religious or political beliefs be able, or as Jenice Armstrong might hope, encouraged to openly advocate those beliefs in interpreting issues that can affect the fate of our entire nation?
The Congress was specifically established by this country’s Founders to, within the bounds of our Constitution, make the laws under which we all live. That’s the proper place for advocacy, and it was specifically set up to ensure full and proper representation of the will of the American people. It should also be the only place where advocacy in the creation or interpretation of the law is practiced, either openly or otherwise.
If a judge in any court in this land has any special or personal interest in, or any predetermined opinion about, any issue at all, he or she is rightly expected to, and should, recuse him- or herself from sitting in judgment of that issue.
Despite Ms. Armstrong’s hopes, that’s the American way. No judge, particularly no Justice of the Supreme Court, should ever be an advocate. Adjudication without representation is the way it’s supposed to be.
– END –
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Posted by Roger E. Skoff on May 16, 2010 4:58 pm
» Filed Under Activist Judges, Anti-Americanism, News, Politics As Usual, Supreme Court, U.S. Constitution, liberalism
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2 Responses to ““OF COURSE, there’s no representation, you twit!””
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I second that! Judicial activism poses one of the greatest threats to the balance of powers in this country. Perhaps that’s why the Progressive Socialists are working so hard to insert their operatives into our courts ….
If she is a lesbian and chooses to be in closet i believe that she is hiding her status so that she would not have to recuse herself from certain cases that may come before her and by itself would be judicial misconduct.