Judges in Moral Combat

In the 1880s, much of south and west Texas, described by one joker as “no place through nothing to nowhere,” was ruled by the “Supreme Court” of Judge Roy Bean. It was rough country where summer temps went over the 100 mark in the shade, and there was very little of that. Bean was a saloon keeper in west Texas, and somebody had to rule it. As he was always around serving booze and advice, he was the logical one to serve as judge and executioner. Bean had no legal training but that was not a great handicap to a man who ran two poker tables and kept his only law book on a beer keg table for use when prisoners approached the “bench.”

Bean had a direct way of solving legal problems. When a body was found by the Pecos River and brought to Bean’s saloon, a quick search found $40 and an old pistol on the corpse. Bean immediately called his court to order and pronounced, “ I hereby fine this corpse $40 for carrying a concealed weapon.” He stuck the money in his pocket.

In another case of note, ten railroad workers were on a bridge when it collapsed, sending them on a fall of 300 feet to the floor of the Pecos River Canyon. Judge Bean rode out to the site on a mule to examine the situation. In that he got five bucks for each inquest held in case of death, Bean declared all ten dead although three were still living, thus picking up 15 bucks more. Bean’s activist judge reasoning: “Them three fellers is bound to die.”

Always looking to add a little to the saloon’s till, he was governed by greed tempered by common sense. Bean also assumed the power of marryin’ and divorcin” in the wilderness. He charged five bucks for a marriage and two bucks for a divorce. In one single case he divorced two couples, and then married each man to the other man’s ex-wife, making 14 bucks for a Saturday afternoon’s work.

Now, please tell me whether Roy Bean was a Republican strict constructionist or a Democratic activist judge. We are soon to be deluged by the talking heads and scribes discussing President Barack Obama’s nomination of Sonia Sotomayor to the Supreme Court replacing moderate David Souter. It seems the Republicans have tight shorts and loose bra straps about having a Puerto Rican female who was dumb enough to finish second in her class at Princeton actually play a role in making decisions affecting the country club class.

Maybe She is Tough Enough to Tell Antonin Scalia to Shut Up

In gathering all kinds of skeletons to present at her confirmation hearings, reporters, snoops, libelers such as Trashus Limbaggymus, and political scoundrels such as the famous intellectual Nukus Grinchus, are sorting through garbage bags and goodwill store donations for dirt and slime.

Some lawyers who have practiced before her say she is “sharp-tongued” and has a “combative manner.” Other detractors have described her as “difficult” and “nasty.” Even a liberal New York Times reporter said she was a tough broad with a “blunt and testy side.” I absolutely love this analysis. Other critics say she is “overly aggressive” and “not very judicial.” It’s about time we had somebody on the court with enough cojones to tell the errant, arrogant Antonin Scalia to shut up and listen for a minute.

Scalia and Chief Justice John Roberts now monopolize 80 percent of the court’s time during oral argument—as if they are the only ones who have something to contribute. Actually Scalia has some of the attributes displayed by Roy Bean at the keg-table—except for common sense.

Sotomayor has not held back in taking on Bush administration lawyers in several “torture” and Gitmo cases. One involved the rendition of a Canadian citizen sent to Syria where he was tortured. In the hearing she asked many tough questions and demonstrated intelligence, a concise and clear memory, and “meticulous” preparation. She also is not shy about putting lawyers on the grill and slowly turning the spit. Above all, her supporters say she has a very healthy skepticism when lawyers speak. These days that’s a real plus.

Her fellow judges on the Second Circuit of the Court of Appeals say she asks direct and tough questions and is engaged in all arguments. They add: “Those qualities, coupled with a gregarious personality, make her a powerful force behind the scenes. She has used mastery of the cases to change minds, improve opinions, and forge consensus.”

Doug Kmiec of conservative Pepperdine University gives her pluses: “In some ways she could match, well, the other New Yorker on the court, Justice Scalia. He expects people to give back as good as he gives, and I expect that when Justice Sotomayor is on the court, his wish will be fulfilled.” That’s what I’m waiting for.

Why Obama Voted Against the Confirmations of Roberts and Alito

Obama praised Roberts’ intellect and integrity on the Senate floor and said he probably would agree with him on 95 percent of the cases. But, Obama says, “The critical ingredient is supplied by what is in the judge’s heart. It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

Jeffrey Toobin, a legal analyst on CNN, in an Atlantic article summed up Roberts’s four-year record on the court: “In every case since he became the court’s 17th Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” Even more than Scalia, Roberts, a millionaire attorney, is very cozy with other millionaires and billionaires who use the members of the middle class as voodoo dolls. Toobin writes that Roberts has always lived a life of privilege and that his work in the Reagan White House demonstrated a clear bias for the wealthy and powerful.

It boils down to this: Is a member of the struggling middle class better off with Supreme Court Justice Paris Hilton or Supreme Court Justice Daisy Mae Yokum making decisions about how the vast majority of the American people should live their lives? Paris Hilton has $300 million, travels the world getting $250,000 an appearance for her “celebrity,” and has no clue as to who pays her bills. Daisy Mae Yokum is not only more pleasantly proportioned than Paris, she has down-at-home intelligence from her experiences in the “holler.”

George W. Bush always knew where his next 50,000 meals were coming from and look what we got. An incurious, arrogant eternal frat boy who was just smart enough to bamboozle evangelicals into thinking he was actually religious. On the other hand, we had Franklin Delano Roosevelt who also knew where his next 50,000 meals were coming from. He ended up being a leader who saw a person in every human, registering empathy for the downtrodden, the poor, the disabled and the hungry. So much so, he was called “a traitor to his class” by the wealthy and powerful.

We still don’t understand how three pounds of gray matter really work, do we? “Judge” Roy Bean may not have been Solomon, certainly did not follow legal precedent, but he had a powerful mixture of American common sense and frontier humor that helped to bring law and order eventually to the West. Such as it is.

The Racism of Trash and Nuke

Both Trash and Nuke called “Sonomayor” a racist because of her statement “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Whether the country club crowd likes it or not, there is a great deal of truth in this statement. Just look at the ascent of Sonomayor from the ghettoes of New York to Princeton, Yale, New York law firms, two senate confirmations, and appointment to the second highest court in the land. Supreme Court Justice Clarence Thomas had similar experiences but ended up with different legal and personal philosophies. That’s another story to be developed later.

Let’s talk about racism and identity politics. We have had 110 people who have served us on the Supreme Court, all white males except for four—two blacks and two women. So the Republicans accuse Sonomayor of practicing “reverse racism?” How preposterous, stupid, and wrong can you be in a single response. Look at the absolute racism which has ruled the court just in the selection of law clerks.

Scalia, the judge who thinks we should base our decisions on gun laws on how the originators of the Constitution felt about muzzle loaders, has picked 48 white men and 8 white women in 20 years to serve as his law clerks. Perhaps the only black he talks to is Clarence Thomas. Chief Justice William Rehnquist, on the court for over 30 years before his death, picked 71 white men, 11 white women, and 1 Hispanic as his clerks. Justice Sandra Day O’Connor picked 66 white men and women, 4 Asian, 1 black, and 1 Hispanic. Of the total of 72 picks, 32 were women.

The Democrats on the court were not any better. Justice Ginsberg picked 22 white men and women, 1 black, and 1 Hispanic. Justice Breyer picked 17 white men and women, 1 black, 1 Asian, and 1 Hispanic. Such discrimination in the selection process goes on and on. If we are a diverse country, wouldn’t we end up with better solutions to our legal problems if we had some diverse thinking on the courts? Different experiences will not particularly bring us better decisions over life and death in the state, but nine judges arguing the facts and the anomalies of a case certainly should bring different views to the table.

I agree with Sonomayor that a Hispanic woman who started life without boots, who has struggled with poverty and ignorance, who graduated summa cum laude from Princeton, who has practiced law in the private sector and has served as a judge for 17 years in various courts has better life experiences to serve us than some millionaire’s kid like John Roberts has—even if he worked for Ronald Reagan in the White House.

Would a Strict Constructionist Actually Vote Against Slavery?

Societies change, science brings new products and new dreams every day, stone tablets turn into e-mails, flat Earth turns to untold numbers of galaxies in untold universes, feather pens turn into petaflop computers making billions of calculations per second, bleeding the sick to let out the black blood turns into substituting genes to allow pigs to grow heart valves, and then we hear the utter nonsense of the Scalias, Alitos, Robertses, and the Thomases that we have to interpret the Constitution based on what George Washington, Thomas Jefferson, and Ben Franklin thought about nuclear power, gene therapy, nanotechnology, wireless communications, sending space vehicles to Mars and abortion. What judicial crap.

Chief Justice Roberts at his confirmation hearings said that justices must be like baseball umpires, strictly ruling on the facts expressed in the baseball rules. But many of us often see things differently. Did the runner touch base? Did the pitch hit the black on home plate? Did the runner beat the throw? Did the batter actually swing at the pitch? But as William Catton of Lakewood, Washington wrote in the New York Times: “But let us remember that ‘the facts’ may be differently discerned by people in different positions. The plate umpire, calling balls and strikes, often defers quite legitimately to the first-base umpire when a right-handed batter checks his swing, or the third-base umpire when a left-handed hitter does so. Location influences ability to determine objectively, “Did he go, or not?”

Roy Bean had no legal training, but he used his life experiences to make relatively sound decisions which generally kept the peace in Texas. We might be able to use both he and Sonomayor on this Supreme Court. Perhaps with a commoner on the Court the rest of them wouldn’t be so full of themselves.