Judicial impartiality and the Constitution

With President Barack Obama’s nomination of federal judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter, the nation is in a debate about both the qualifications of the nominee and the proper criteria for selection. That the nation is divided over both obligates us to clarify their relationship to each other. Judge Sotomayor, whose Puerto Rican descent should not matter but it does because the President and she have that said it matters, is undergoing the by-now familiar microscopic examination that has attended these nominations since Judge Robert Bork was savaged by Senate Democrats in 1986. On paper the lady who has made much of her ethnicity is qualified, and she will be confirmed because her party has the votes.

I oppose this nomination for the simple reason that Judge Sotomayor does not understand, if she does not actively oppose, the United States Constitution as it was understood by its framers and ratifiers. But it is more important to set forth the grounds upon which this decision should be made than to emphasize the reasons why she should be rejected.

Both liberals and conservatives have a legitimate point about the requirements of constitutional jurisprudence but both have a blind spot. Liberals make much of the fact that the judges will inevitably bring to the table certain predispositions and preconceptions which will shape their decisions. This can hardly be doubted, but the question is whether the judges’ "baggage" will keep them from performing their duties well.

For if those predispositions and preconceptions are inconsistent with the character of the Constitution, not to mention the political philosophy which informs it in the Declaration of Independence, they carry no weight and should be disregarded. Hence, what race or gender one belongs to is irrelevant.

Conservatives contend that judges should not legislate from the bench but apply the Constitution and laws to the case before them. Their logic is unassailable but they are too prone to give bad laws the benefit of the doubt when they may in fact be unconstitutional. After all, most conservatives believe that Roe v. Wade (1973) was wrongly decided and even unconstitutional.

If this criticism seems unfair, consider the oft-repeated conservative criticism of "activist" judges who, pretty much as conservatives claim, go well beyond the role of judge and make up constitutional law that has no warrant in either the language of the Constitution or the judicial precedents relevant to a case. Is a judge who upholds the Constitution by striking down a state or federal statue in conflict with it a "passivist" judge?

Liberals criticize conservatives on the grounds that judges of their political philosophy are no less activist than liberals when it comes to their constitutional priorities. I grant the criticism, at least to this extent, that defense of the Constitution demands more of judges than simply applying the laws to a case.

However, judging is fundamentally different from legislating, as the former deals with specific cases and the latter devises general rules. We don’t want a Congress to decide who has violated its laws or to affix penalties for doing so. But we want all our public officials to abide by the Constitution because it is the supreme law and because it embodies justice.

The Constitution requires judges to be neutral between the parties in the cases which they decide, but it is not neutral about the requirements of justice. Its conception of justice entails "secur[ing] the blessings of liberty to ourselves and our posterity." The document empowers the federal and state governments to rule but also limits their powers in numerous ways. Beyond these limitations, ours is a republican constitution, that establishes rule by the people through their chosen representatives on behalf of purposes which their constitution spells out.

Our quarrel with judicial activism should be focused on a judge’s predilection to corrupt our Constitution with doctrines calculated to "transform" it from a guarantee of equal rights for all to a device for empowering government officials to favor allegedly underprivileged groups at the expense of everyone else. It is no accident that President Obama nominated a Latina woman with a class-based notion of justice, for such is what both of them want.

Our Constitution should be protected from the efforts of anyone to subvert it for unjust ends. The judges’ impartiality is in the service not of a neutral constitution but one which favors equal justice over class rule.

Sotomayor's race colored glasses

Barack Obama's selection of Sonia Sotomayor is par for the course with this president, a man who ascended the presidency on the basis of a compelling personal story and a bag full of bromides about post-partisan hope and change. Those who bought the Obama schtick may not have known it then, but they elected a hyper-partisan pol with big dreams of remaking America into a social justice utopia where the ends always justify the means. Rules -- and indeed the rule of law -- mean little in this world where grievance politics dominate, and the playing field shifts regularly to protect those suffering all manner of "discrimination" at the hands of the (white) power structure. Its typical class warfare, only this time it is practiced with extreme efficiency and on the backs of a huge Congressional left-wing majority. For those who believe that America is a meritocracy and should be truly "color-blind", the country is now being run by those who see everything through race-colored glasses. The nomination of Sotomayor is a perfect example of this. Obama picked her not because she has the finest legal mind in the country (she does not), but because of she is an Hispanic woman who has a personal history that is appealing. She grew up poor in the Bronx and worked hard, and made something of herself. She also satisfies two check boxes on the identity politics checklist -- being a woman and a minority -- which brings Obama praise from NOW and other interest groups.

Ironically, Sotomayor's story is little different than that of conservative Justice Clarence Thomas -- a point eloquently made today by Kim Strassel in the Wall Street Journal. But whereas Thomas' personal struggles led him to embrace the lesson that if "I can do it, so can others" -- Sotomayor fell firmly into victimization's clutches, where she joins a legion of other minorities in the belief that the system is arrayed against them. The irony, of course, is that the evidence of their own success from hard-scrabble beginnings has done nothing to dissuade them from their hardened belief that somehow "the man" is out to get them. This is yet another example of how facts have little bearing on the "feeling" politics practiced by the left.

Sotomayor has made it clear that her view of the world -- and the law -- is based principally on her gender and background. It is something that she feels makes her better positioned to "come to a wise decision" than is a white man who hasn't been subjected to the devastating discrimination that people like Sotomayor see lurking behind every tree. If you view America as a mean place where Hispanics, women and other minorities need protection, then I suppose this is a reasonable position to take. But is this what a Justice of the United States Supreme Court should believe? Someone appointed to intepret the Constitution for all Americans -- white, black or other? A process that, by definition, must be impartial and based on legal fact and analysis?

As it happens, a famous case of Sotomayor's from her tenure on the Second Circuit Court of Appeals is now being reviewed by the current Supreme Court -- as the Wall Street Journal outlines today in the case of the New Haven Fire Department:

With a single paragraph, Judge Sonia Sotomayor and two colleagues dashed the hopes of firefighters here who believed they'd scored high enough on exams to win a promotion.

The three federal appeals judges said last year the city had the right to reject the results of two tests because no black firefighters scored high enough.

The ruling is now turning into perhaps the most contentious of the 4,000 Judge Sotomayor made in 17 years on the federal bench, and it is likely to come up in her Supreme Court confirmation hearings. The justices whom she may soon join on the high court are expected to rule within weeks on the case, which they took on an appeal by white firefighters.

The facts of the case are as follows:

A total of 118 applicants took the two tests for promotion to lieutenant or captain in late 2003, and 59 earned passing scores. Because there were limited vacancies, only the top scorers were eligible for promotion -- a group of 17 whites, and two Hispanics. None of the 27 black firefighters with passing scores was eligible.

New Haven city lawyers advised the city's Civil Service Board to reject the results, warning the city could be exposed to a race-discrimination lawsuit by minority firefighters if it let the exam stand. The board heard conflicting views on whether the test could have been re-engineered to have a less disparate impact. It split 2-2, which meant the exam wasn't certified.

This is classic liberal social engineering at work: you give a merit based test to determine promotions and tell firefighters to study hard for it. They take the test and when the results come back in a way that you don't like, you throw the results out and say "nevermind". If no blacks and only two Hispanics scored high enough, it must be because of some discrimination at work. Let's not reward those who passed -- let's reengineer the test so more blacks and Hispanics will pass.

Sotomayor was at the heart of this decision -- stating that it was in the "state's interest" to throw out the results so that the outcome was more to her liking. And what about the white firefighters who have now been discriminated against? To Sotomayor, it doesn't matter, because she lives in a world where color matters more than principle. This is a woman who values outcomes over equality -- even if it results in a decision that is reverse discrimination.

We can take some solace that her decision in New Haven is almost certainly going to be reversed by the current Supreme Court. But it leaves little comfort that we are now poised to put this very same judge on the highest court in the land for a generation to come.

Scholars group decries Churchill verdict

"Anything goes" in college classrooms: that's the message of Ward Churchill's legal victory this week, according to Stephen Balch of the National Association of Scholars. Balch said the win for Churchill, whom he called "the poster boy for academic irresponsibility," worsens the disconnect between the academic freedom's obligations and its protections.

Here's his full statement as posted Thursday at www.nas.org:

The decision for Churchill will only further attenuate an already fraying relationship between the protections of academic freedom and their corollary obligations. Churchill is the poster boy for academic irresponsibility in both substance and style. That he wins today in court, helped somehow by his very notoriety, can only fortify the sense that anything goes.

If there is a lesson here it is that universities must be proactive in the enforcement of standards. Waiting for a public scandal with all its attendant complications is hardly the policy of choice. Universities must build a culture of responsibility that affects every aspect of institutional operation, but especially scholarship and teaching. Faculty members must realize from the beginning of their employment that their institution, and their peers, care about issues of intellectual integrity, foster a consciousness of scholarly ideals and good practice, and apply these at every level of professional review.

The outcome of the Churchill trial is unfortunate, but it was a trial that in a better academic world would never have occurred. The best point at which to protect professionalism is not career exit, but career entrance and stage-by-stage thereafter. If that’s the lesson learned from this sorry result, academe will still be able to recoup its loss.

The National Association of Scholars is America’s foremost higher education reform group. Located in Princeton, NJ, it has forty-seven state affiliates and more than four thousand professors, graduate students, administrators, and trustees as members.

Disclosure: Stephen Balch and I serve together as board members for the Center for Western Civilization at CU-Boulder, headed by classics professor Christian Kopff.

Can'em or keep'em?

(Denver Post, Apr. 5) “We are a nation that has a government, not the other way around.” Reagan’s words speak defiance to statism, but they are only as true as we make them. The 2010 election is Coloradans’ chance. Supreme Court justices Mary Mullarkey, Michael Bender, Alex Martinez, and Nancy Rice will be up for another 10-year term. Poor stewards of the law since they last faced voters in 2000, all four deserve dismissal. Whether they’re retained or bounced will signal how much we cherish liberty. Voting judges into office ended here in the 1960s. Gubernatorial appointments replaced the unseemly spectacle of jurists soliciting campaign funds. The people can still vote judges out, however, and no court can overrule us. Nor need we explain why. In this, at least, we’re still sovereign.

Capriciousness isn't justified. “Prudence will dictate” avoidance of political changes “for light and transient causes,” the Declaration of Independence cautions. But terminating a dishonest judge is warranted – and so is termination for breach of trust. Mullarkey, Bender, Martinez, and Rice have failed their constitutional trust.

The justices up for renewal are poster kids for the “living constitution” racket of legislating from the bench in disregard of the written text. Under Chief Justice Mullarkey, as Vincent Carroll wrote after last month’s TABOR ruling, “the Colorado Supreme Court seems to think that it is… free to redefine words however it likes.” Let’s answer their abuse of judicial review with electoral review and retire them.

Is this a wild revolutionary idea as some lawyers and professors will claim? No, it’s an eminently conservative remedy of checking power with power and reminding the government it answers to the nation, not the other way around.

Termination wouldn’t deny the thorniness of such questions as when a tax vote is required, how citizens can petition to discourage illegal immigration, whether low-income scholarships are allowable in public schools, who draws congressional districts, or why a juror’s Bible should annul a murder sentence. It would simply express our displeasure with the four activist Supremes by ordering them replaced.

Replacement, should it occur, may itself be thorny. If defeated in November 2010, Mary Mullarkey (appointed in 1987), Michael Bender (1997), Alex Martinez (1998), and Nancy Rice (1998), Democrats all, would leave office in January 2011 and have their places filled by either Gov. Bill Ritter or his successor. Republicans voters are more likely to want the seats vacated if they foresee a new governor, but that’s no sure thing.

Amendment 40, the judicial term limits proposal I led in 2006, led early but sank as the GOP base saw Bob Beauprez’s gubernatorial hopes fading. Its mandate for appellate judges with over a decade of service to leave after 2008 – which would have opened up five of the seven Supreme Court seats – was less attractive to center-right voters when a Ritter victory seemed likely. Might that dynamic recur next year?

It depends on how energetic and well-funded the do-not-retain campaign against Justices Mullarkey, Bender, Martinez, and Rice turns out to be. California chief justice Rose Bird and two of her liberal colleagues were tossed in 1986 by voters outraged at their leniency to killers. That Colorado murder case I mentioned, the one with the Bible, may gain notoriety as the 2010 race heats up.

Plus there’s the March 16 decision allowing billions in higher taxes without voter approval, which Beauprez calls “the kind of blatant judicial activism that infuriates the citizenry and increases the call for voting against retention of wayward justices.”

A dismissal drive called Clear the Bench Colorado is already being organized by Arapahoe County activist Matt Arnold. Politicians of both parties will probably keep their distance while a nonpartisan “can’em or keep’em” contest determines the four justices’ fate. I say can’em.

Justices blow off vote on taxes

Colorado's constitution plainly says that state and local governments can't raise taxes without voters' permission. If only the Colorado Supreme Court could read plain language. Instead, the court's liberal majority ignores terms that should obviously protect taxpayers and instead emphasizes extraneous arguments that accommodate government.

This latest legal chicanery comes from the same playbook that turned the First Amendment's guarantee of religious freedom into a tool to suppress religious speech.

Now voters who allowed their local school to keep, rather than refund, excess property tax collections are being hit with a backdoor property tax increase imposed by Gov. Bill Ritter and Democrat legislators.

Three factors determine property taxes: property value, the assessment rate, and mill levy.

If your home is worth $200,000, the assessment rate is 8%, and the mill levy is set at 50, the tax calculation looks like this: $200,000 x .08 (assessment rate) = $16,000 taxable value x .050 (mill levy) = $800 property tax.

When Colorado voters added the Taxpayers Bill or Rights (TABOR) to the state constitution, they prohibited state and local governments from enacting "a tax policy change directly causing a net tax revenue gain" without voter permission.

TABOR also limited total tax revenue increases to the combined rates of inflation plus population growth. If population plus inflation increase by 5% but total property valuation increases by 10%, the excess must be refunded to taxpayers and future mill levies reduced to avoid collecting the excess again.

Lawmakers from both parties have understood that neither the mill levy nor the assessment rate can be increased without a public vote. (The last attempted vote failed by a 3-to-1 margin.)

In 174 of Colorado's 178 school districts, voters have authorized their schools to keep the excess with the understanding - based on explicit promises from school and state officials - that taxes would remain subject to the population-plus-inflation limit.

Enter Colorado's newly empowered Democrats, who pay lip service to taxpayers but pledge allegiance to government. Ritter and his minions decided - without voter approval - that reducing mill levies was no longer necessary if voters had given their local school permission to keep excess revenues.

As a result, taxpayers coughed up an extra $117 million in the first year - an amount estimated to double every three years. This obvious "tax policy change" resulted in a "net revenue increase" which, to anyone without a law degree, clearly means voter permission is required.

But not according to Chief Justice Mary Mullarkey who ruled that Ritter and his fellow tax-hikers were merely implementing the wishes of the voters in those 174 districts - albeit years later.

Assurances to voters by school officials that taxes would remain capped don't matter, the court said, because those voters approved ballot questions that permitted schools to retain "all revenues" - even revenues that didn't exist at the time of the vote.

Worse, those tax dollars won't increase funds for local schools. As local taxpayers dig deeper, the state will reduce its contribution - instead paying more for welfare entitlement programs or to colleges and universities.

The consequences for voters and for schools are unfortunate. Voters can no longer take the word of school officials that "no one wants to raise your taxes." Even if local officials don't; state officials might and, thanks to Mullarkey, they can do so without the consent of voters or local schools.

Colorado Association of School Boards also backed the tax hike, leaving many local officials with egg on their faces. School leaders who conscientiously recognize the potential backlash from voters who feel betrayed should present taxpayers with the opportunity to re-instate the TABOR limit on property tax revenue and ask voters if their school can keep the change under that limit.

For voters and taxpayers, the recurring lesson is that constitutional limits on government are worthless if lawmakers won't abide by them and judges won't enforce them.

Mark Hillman served as Colorado senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com