Judge Sotomayor, meet Dick Deadeye

(With apologies to legal scholars for my simplifications and thanks to my father for a tutorial on appellate procedure)

I have been following the news of the nomination and confirmation process of Judge Sonia Sotomayor. The howling from the right wing politicos and punditry brings to mind a character from Gilbert and Sullivan’s musical H.M.S. Pinafore, namely Dick Deadeye. Here’s the explanatory passage from the libretto:

BOATSWAIN. Well, Dick, we wouldn't go for to hurt any fellow-creature's feelings, but you can't expect a chap with such a name as Dick Deadeye to be a popular character — now can you?
DICK DEADEYE No.
BOAT. It's asking too much, ain't it?
DICK. It is. From such a face and form as mine the noblest sentiments sound like the black utterances of a depraved imagination. It is human nature — I am resigned.

The running gag is that Deadeye utters commonplace statements that reflect reality, whereupon the rest of the cast recoils from him in horror. My comparison is no comment on Judge Sotomayor’s actual face and form; her appointment by President Obama and her political position somewhere to the left of Newt Gingrich serve as her appearance to the conservatives. For some right wing-nuts her gender and ethnicity are strikes against her. She could express a fondness for the American flag and they would find an excuse to stick in their knives.

One of their key attack points was a conveniently edited tape of her saying that the courts are where policy is made. She was joking, of course, and the full tape (See below) exonerates her from the charge of advocating legislation from the bench. Nevertheless, she spoke a kind of truth, a truth that legal professionals would recognize.

The courts of appeal are the arbiters of the meaning of laws. Some laws are definitive, like speed limits, but others are complicated or vague enough to require interpretation. One of the basic tasks of an appellate court is to determine whether the law applied in a lower court case was actually appropriate to the evidence presented. The judges in these courts, as Sotomayor stated in her now-famous quote, have to think about the general application of the law as well as the case at hand. The higher courts also accept or reject laws based on constitutional precedent. An appeals court or Supreme Court judge cannot escape this interpretive duty. Some like to claim that they are originalists, sticking to the intent of the framers of the constitution. Aside from the historical mind reading problem, our forefathers used words such as “unreasonable,” “excessive,” and “cruel.” Somebody has to decide what those words mean today, and that alters the effect of a law in practice.

The right wing will continue to heap abuse upon Sotomayor for saying and doing what other judges have said and done. Her opponents don’t seem to have comprehended the near-instantaneous fact checking available online, along with the ability of her supporters to post full length quotations and video clips, both of her and of conservative judges caught in the act of saying the same sorts of things. Barring a black swan event, her nomination will go through, after some obligatory heel-digging by the Republicans. I predict that her credibility will increase as her opponents continue to make themselves look foolish.

DICK DEADEYE. Ah, it's a queer world!
RALPH RACKSTRAW. Dick Deadeye, I have no desire to press hardly on you, but such a revolutionary sentiment is enough to make an honest sailor shudder.