A Zen Buddhist’s View Of The Illusion Of Corporate Personhood - 2

I previously posted Section A of Part 2 of my planned essay. Here, Section C of Part 2, is another piece of the puzzle of corporate personhood.

2. A Brief History of the Stranger Than Fiction Doctrine of Corporate Personhood

C. The Strange Case of Santa Clara County v. Southern Pacific R.R. Co. 

In the annals of history, both legal and lay, the case of Santa Clara County v. Southern Pacific R.R. Co. (1886), 118 U.S. 394, has been credited with legally establishing the court created doctrine of corporate personhood.  And because of this, Justice John Marshall Harlan, the author of the opinion has been called the father of the doctrine of corporate personhood.  The truth is stranger.  The Santa Clara case was about whether fences on the side of the tracks should be taxed by the state government or by the local counties, and thus asked the narrow legal question:  Was the assessment of the railroad companies= fences that were taxed by the state as part of the Arailway@ legal, or should the fences have been taxed by local government separately as Aother property@ improvements?  

The railroad corporations argued the state assessment was invalid because the fences were not part of the Arailway@ but were Aother property@ improvements taxable only by localities. As an alternative argument the railroads argued that the assessment was invalid because the railroad companies had not received equal protection under the 14^th Amendment since other corporations and natural persons received the Aother property@ status for local taxation. This question of “equal protection” of course is the question that was the lynch pin in the theory of corporate personhood and was the holy grail that the railroads and other corporations had been reaching for by bringing a multitude of cases to the Supreme Court.

The Federal Court of Appeal ruled on the equal protection issue in favor of the railroad and found that the railroad did indeed have the equal protection of the 14^th Amendment, and so that court never addressed the state law issues. 

When the Santa Clara case was decided by the Supreme Court Justice John Marshall Harlan wrote the opinion of the court.  This opinion by Justice Harlan is the only legally binding result and authority of the Santa Clara case.  But whatever judicial sins Justice Harlan may have had, Acreating@ the legal fiction of corporate personhood in his opinion in the Santa Clara case was definitely not one of them.  Justice Harlan=s opinion upheld the ruling of the trial court in favor of the railroad, but not for the 14^th Amendment reason the railroad wanted. 

Harlan found that the appellate circuit court had ruled in backwards order, because the case should have been decided on the state law basis, not on Athe grave questions of constitutional law upon which the case was determined below.@  Justice Harlan concluded, AAs the judgment can be sustained upon this ground [of state law] it is not necessary to consider any other questions raised by the pleadings and the facts found by the court.@  Thus the corporate personhood question was never even ruled upon by the Santa Clara case. In fact, the Santa Clara case specifically overruled the lower appellate court’s attempt to insert the 14^th Amendment into the case.

So how is it that this case is uniquely misunderstood in the history of law and the development of the doctrine of corporate personhood?  Simply, it was the later deliberate misrepresentation of the law by Supreme Court Justice Stephan J. Field. In the Santa Clara case, the summary minutes of the case history prepared by the court clerk states in its introduction:

AOne of the points made and discussed at length in the brief of counsel for defendants in error was that >Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.= Before argument MR. CHIEF JUSTICE WAITE said: The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations.  We are all of opinion that it does.@ 

However, the statement of Chief Justice Waite had absolutely no force of law as it was merely the expression of his own personal opinion before arguments even began, and was not only not incorporated into Justice Harlan’s written opinion on the case, the written opinion explicitly rejected the meaning of this comment as being part of the decision on the case.  Prior to this case there had been no Supreme Court decision that ever stated that corporations are persons within the meaning of the 14^th Amendment, and Justice Harlan’s opinion in this case specifically stated again that the Supreme Court was not making that ruling.

Thus, the doctrine of corporate personhood was not promulgated within the authoritative opinion of court hearing the Santa Clara case, but was stated only in the unauthoritative dicta (side comment) of the Chief Justice from the bench that was said even before the oral arguments had begun.  Therefore the Santa Clara case has absolutely no precedent value on the issue of corporate personhood.  There was in fact no legal reason for the court clerk to have inserted the comment into the summary of the case other than as an interesting note of history. At the time before recordings, the minutes of the comments at the hearing were the only official record of the proceedings and were attached to the opinions even though the minutes were not part of the opinions. The general and commonly acknowledged rule is that there are many comments made by Justices during oral argument, and it is beyond dispute that none of those comments have any authority or precedent and are only of value in trying to divine the reasoning behind the individual justice’s later opinion.

The Real Father of Corporate Personhood

Afterwards, even though the clerk had merely inserted some of the bench comments into the summary of the case, not the opinion of the case, the Santa Clara case became known as the original source of judicial authority on the doctrine of corporate personhood due to the intentional misrepresentation by Justice Stephen J. Field, who is the real “father of corporate personhood.”  How can it be said that Field’s misrepresentation was intentional?  As it turns out, Justice Field of the Supreme Court  was sitting on the 9^th Circuit Court of Appeals at the time of the Santa Clara case and he was the author of the appellate decision that found that corporations were persons.  In those days the Justices of the Supreme Court also served on the appellate circuit courts when not in session in Washington. Thus it was his own opinion that had been overruled by the Supreme Court in the Santa Clara case.  So there is no conceivable way that he did not know that the Santa Clara case had overruled his own appellate opinion and in doing so had specifically refused to rule on the question of corporate personhood as he had hoped it would.

Who was Justice Stephan Johnson Field?  He was a lawyer from New York who went to California in the 1848 Gold Rush.  Within three days of arriving in Marysville California, he was elected Alcade (mayor) and instituted the whipping post as a substitute for the expense of incarcerating prisoners.  He was then elected to the State Assembly in 1850 but lost reelection. He was then elected to the California Supreme Court in 1857.  While a Justice on that court, he carried two pistols in a specially made coat so that he could fire his weapons through the coat’s pockets.  From the California Supreme Court President Lincoln appointed Field to the US Supreme Court in 1863. 

Field’s career on the Supreme Court shows that he never met a corporation that he didn’t like.  As soon as the 14^th Amendment was adopted, Field began looking for ways to bring corporations into its penumbra.   It was obvious to any observer that the 14^th Amendment was originally intended to guarantee equal protection of the laws to free slaves who were now recognized to be citizens of the United States.  However, the railroads and other big corporations immediately perceived that, if the 14^th Amendment could be made to apply to corporations that were already recognized as “artificial persons” as “persons under the 14^th Amendment,” then this would be the mechanism for the legalization of their supremacy over natural persons in the realm of politics.   Field was central to the Supreme Court’s expansion of the 14^th Amendment protections for everyone, and especially including corporations, everyone that is except the originally intended recipients of the 14^th Amendment, the freed slaves and other previously subjugated minorities such as the Chinese.

Two years after the Santa Clara case, in Pembina Consolidated Silver Mining and Milling Company v. Pennsylvania (1988) 125 U.S. 181, Justice Field wrote in the majority opinion that corporations are not Acitizens@ within the meaning of the Privileges and Immunities Clause.  He had to say so because a previous case had already stated this explicitly, and the Court was not about to overturn this precedent.  Field explained Athe term citizens, as used in the clause, applies only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature, and possessing only such attributes as the legislature has prescribed.@  This is of course, if reason and logic prevailed, the same reasoning that should lead to the same conclusion regarding the question of whether a corporation is a “person” under the 14^th Amendment’s definition of persons as “persons born or naturalized in the United States.”

However, in the Pembina case, Field incredibly came to the opposite conclusion as to the term “person” in the 14^th Amendment’s next sentence and was able to do so because no other case had ruled on this question.  In a gratuitous and superfluous statement of dicta, having nothing to do with the outcome of the Pembina case, Field wrote, AUnder the designation of person there is no doubt that a private corporation is included.  Such corporations are merely associations of individuals united for a special purpose, and permitted to do business under a particular name, and have a succession of members without dissolution.@  Field provided no legal rationale whatsoever why corporations are not “citizens” since they possess only such attributes as the legislature prescribes, but are “persons” while possessing only the very same attributes.  In other words, Field was doing away with the previously vital distinction between “natural” and “artificial” in the legal fiction of a corporation’s personhood.

For the first time in a Supreme Court decision, Field was stating this new doctrine without referring at all to the Santa Clara case or to any other specific previous case to support his statement, a statement that was not even necessary and had no specific application to the case at hand.  This is the earliest case that actually states in the body of its opinion that private corporations are included as persons under the 14^th Amendment.   And of course, that holding was not even necessary because his opinion in even this case concluded that the 14^th Amendment didn=t apply to the case, even when corporations are considered as persons.  But in order give corporate personhood a foothold into case law, Field inserted the doctrine without otherwise explaining any legal basis for it.

Then finally in Minneapolis & St. Louis R. Co. v. Beckwith (1889) 129 U.S. 26, issued only a year after Pembina and three years after Santa Clara, there came a case about three hogs that had been killed by a train.  Under the Iowa statute, after a hearing a justice of the peace awarded damages in favor of the farmer. The railroad then ignored the order and under the same statute the award was doubled for failure to pay.  The railroad challenged the statute saying they were denied equal protection under the 14^th Amendment because the statute only applied to railroad corporations and the double award provision was not in other statutes that applied to other types of corporations.  The railroad was claiming that they deserved equal protection because not all corporations were being treated equally under the law. 

In a legally fascinating sleight of hand, Field was able to turn this case into the watershed that the corporations were seeking. The court majority, with Field writing the opinion, found first that the 14^th Amendment applied to corporations, but that the state law in this case had not violated the 14^th Amendment because the state’s police power in enacting the law had a reasonable basis to make the law apply only to railroads and the 14^th Amendment required only that like persons were treated alike, that is, that all railroad corporations be treated alike, not that all corporations be treated alike.

Then to support his unprecedented position with precedent, Field wrote: ACorporations are persons within the meaning of the clauses in the Fourteenth Amendment to the Constitution concerning the deprivation of property, and concerning the equal protection of the laws.  Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394, and Pembina Mining Co v. Pennsylvania, 125 U.S. 181, followed.@  Of course, Field knew that Santa Clara did not make that holding and that his own opinion in Pembina didn=t even mention Santa Clara, much less follow it as precedent.  He knew as well that the reference in Pembina to corporate personhood was judicial dicta inserted by himself having no application to the ruling itself.

So it was Justice Field who singlehandedly inserted the doctrine of corporate personhood into Supreme Court opinions and exploited his false citation to Santa Clara as the source of the earliest precedent for the doctrine of corporate personhood to create a false history of corporate personhood.  Subsequently, people, including the Supreme Court in later decsions, have taken Field's false citation to the Santa Clara case as proof that the Santa Clara case is the first case that established corporate personhood as a precedent.

To date, no Supreme Court case has ever directly considered and provided the legal rationale to support the argument on the original issue of whether and why corporations are included as persons under the 14^th Amendment when the 14^th amendment only defines persons as “persons born or naturalized in the United States,”  For example, if taken at its face value, under the naked conclusion of Minneapolis & St. Louis R. Co. v. Beckwith, since corporations are persons under the 14^th Amendment, corporations should be able to be elected to congress under Section 3 of the 14th Amendment that refers to persons elected to Congress.

Judge Sotomayor's Mistake of Law

Judge Sotomayor said many times during the hearing in various ways that judges "do not make law, congress makes the law." This is exactly what infuriates me.

If I were on the Senate Judiciary Committee here's what I imagine I would ask:

Judge Sotomayor, I have one question. If you answer it correctly I will vote for your confirmation and if you answer it incorrectly I will vote against confirming you. Here's my question: True or false? All judges in the normal conduct of their authority do make law.

The correct answer, of course, is "True." But from the statements of the Republicans on the committee and from Judge Sotomayor one would think the answer is "False" and that Judges do not make law. Contrary to what Judge Sotomayor and the Republicans would have you believe, it is basic black letter law that Courts and judges do make law.

Black's Law Dictionary tells us, "Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law." This means that congress makes laws by enacting statutes, and the judiciary makes laws by issuing decisions and rulings. In their processes of making laws, all lawmakers do interpret existing law. But it is a false dichotomy to say that judges interpret law and they do not make law and that only Congress makes law. The very purpose for which judges interpret law is so that they can make law. The interpretation of law is what judges do as part of their decision-making process that results in the law that they make. Sometimes the law that they make is only the law of the individual case. But sometimes, in an area where there is not specific statute covering the factual circumstances, the judges do make laws that all citizens must obey until Congress later passes a specific statutory law to deal with the issue.

Actually both Congress and the judiciary interpret the law as part of their law-making function. Congress interprets the Constitution and prior law when making new statutory law. For example, Congress must ask, does the Constitution allow us to make this law, and does this law conflict with other laws? And the judicial branch interprets the law when it is making new case law.

As Black's Law Dictionary informs us, "The 'law' of a state is to be found in its statutory and constitutional enactments, as interpreted by its courts, and in the absence of statute law, in rulings of its courts. The word law generally contemplates both statutory and case law."

So when Republican Senators like Graham, Sessions, and Kyl would have the American people believe that judges should not be making law, they are misleading the people. Congress makes statutory law and judges make case law. Republicans are in fact trying to usurp and overreach their law making authority by convincing the American people that there is something wrong when judges make the law. Nothing could be more inaccurate.

The problem is that ever since Marbury v. Madison, Congress has been jealous of the Court's authority to overrule Congress on constitutional grounds. Republicans are trying to undermine our system of checks and balances and the Court's authority to unmake the laws that Congress makes.

Asking which came first, statutory law or case law, is a little like asking about the proverbial chicken and egg. Statutes are created but they don't cover all areas of life and when a controversy comes to the court and there is no specific statute covering the conflict, the court makes a case law that settles the matter. That case law, depending on the level of the court, must be followed. The case law of a trial court must be followed by the parties in the case. The case law of the appellate court must be followed by all people within the jurisdiction of the appellate court, and the case law of the Supreme Court must be followed by all people in the nation.

As part of the normal checks and balances of our legal system, if the legislative branch doesn't like the case law that has been established in those situations where statutes are lacking or vague, then Congress may enact a new statute that overrules the case law with statutory law. But short of amending the Constitution, the courts have the last say when it comes to the Constitution law. So, when Congress enacts a statute based on a wrong interpretation of the Constitution, then the courts can overturn the law as unconstitutional and Congress can do nothing to change that case law except to pass an amendment to the Constitution and seek ratification by the states.

Some people may argue that when the Supreme Court issues a decision on Constitutional law that it is just interpreting the Constitution not making law. But in that case it is a distinction without a difference. For example, when the Supreme Court at one time said that "separate but equal" was constitutional, it was making that law based on its then interpretation of the Constitution. And when the Supreme Court threw out "separate but equal" is was making new law based on its then current interpretation of the Constitution. So, while the actual words of the Constitution remained exactly the same, the different interpretations actually made different judicial laws that each had to be followed during the time of their judicial enactment. Thus, a decision of the Supreme Court is seldom, if ever, just an interpretation of law but is an actual making of the case law of the land.

At her confirmation hearing, Judge Sotomayor misinformed the public by equating generic "law" with the statutes that Congress makes. The Judicial branch makes law through the decisions of the courts. Every decision of the court is lawmaking.

Many observers beside myself have noted that confirmation hearings have become a farce because the nominees avoid questions by hiding behind the two shields of "I won't answer hypothetical questions" and "I won't discuss issues that may come before the court." Nominated judges in these confirmation hearings just say whatever boring and vanilla thing will get them approved with as little controversy as possible. Phrases such as "judges interpret the law, they don't make the law" must be repeated because the Congresspeople are so jealous and childish about their role as the makers of statutory law that they can't allow it even to be said that of course judges make laws, they make the case laws.

We know that Judge Sotomayor, like Roberts and Alito before her, in order to be confirmed said as little as possible about her real feelings about the law, and like Roberts and Alito, misrepresented, obfuscated, and essentially lied to Congress about her views of the law. Defenders of the nominees say the nominee must play this role in the farce in order to be confirmed. Still, it galls me that the history and practice of jurisprudence is being so twisted and perverted by the way the word "law" is being narrowed to be a synonym of "legislative statute" and leaves out judicial decision-making as making laws.

Sotomayor Aiding Republican Misinformation

It is very disturbing to me to watch and hear the Judge Sonia Sotomayor Supreme Court confirmation hearings as I hear how the judicial process is being mischaracterized and the pubic is being misinformed in line with the Republican propaganda about judicial activism.

Why do Republicans want to remove empathy and personal experience from the judicial bench? Because when judges make decisions using empathy and personal experience to inform their application of the law it results in decisions like those of the Warren Court. The whole propaganca campaign of Republicans to frame the question of judicial prejudice in terms of empathy and personal experience is to disguise the Repubican prejudices in favor of those who would use the law to oppress and exploit the weaker people in our society. Unfortunately, Judge Sonia Sotomayor is aiding this Republican propaganda.

Whether it is from an abundance of caution or her own beliefs, Judge Sotomayor has joined in with Republicans to misinform the public about both how judges make law and how judges use their life experiences in deciding cases.

Judge Sotomayor has stated that she believes judges do not make law and that it is inappropriate for judges to use their experiences in deciding cases. Both these statements are wrong. Under questioning by Senator Kyl, Judge Sotomayor said,

It is very clear that I don't base my judgments on my personal experiences or my feelings or my biases.

The problematic falsehood is that she and the Republicans are equating personal experience and empathy with bias.

to be fair to Judge Sotomayer, she does give some small acknowledgement of the role of personal experience and feelings, but she does so in an overly cautious manner that gives too much credence to the Republican framing.

When asked by Senator J. Sessions (R-AL) about whether judges should allow their “prejudices” to “impact their decision-making,” Judge Sotomayor stated:

SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they’re feeling as they’re adjudicating a case and to ensure that it’s not influencing the outcome. Life experiences have to influence you. We’re not robots to listen to evidence and not have feelings. We have to recognize those feelings and put them aside. … But there are situations in which some experiences are important in the process of judging because the law asks us to use those experiences.

SESSIONS: Well, I understand that. [...]

SOTOMAYOR: I think the system is strengthened when judges don’t presume they’re impartial, but when judges test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not.

But then to the extent that she endorsed empathy and personal experience with one hand she took it away with the other hand when she said later,

“at no point or time, have I ever permitted my personal views or sympathies to influence the outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. I do not permit my sympathies, personal views, or prejudices, to influence the outcome of my cases.”

This is just a fantasy description of judicial decision making, and reiterates her belief that sympathies and personal experiences are somehow to be equated with prejudices. They are not.

Since the days of Eal Warren, the greatest Chief Justice this nation has seen, the Republicans and conservative fringe have fought against American justice by accusing the Warren court and any subsequent liberal judge or justice of making law rather than applying law. The charge is bogus on its face. First, when deciding every case, each and every judge or justice on all sides of political persuasion is making the law of the case by applying the law of the land to the facts of the case.

Second, laws are written in abstract generalities and can only be applied to actual facts. In many cases there is no clear fact pattern that determines the resolution of the dispute according to one law or another. In those cases the judge or justice is making the law that applies and then applies it. For example, one law may say "It is illegal to do X", another law may say "It is illegal to do Y" and it may be legal to do Z. When a case comes up where someone has done W and there is no law that says whether W is legal or illegal, in this case the question of law may become "Is W more like X, Y, or Z?" In this case the judge decides whether W is illegal because like X or Y or legal because like Z. In this case, the judge is making a new law: either "W is illegal" or "W is legal.". If the case is appealed then the reviewing courts are making new law vis a vis W also, whether or not they affirm or overrule the lower court.

Third, when a new right is established by the Supreme Court it is making a law. In the Second Amendment case District of Columbia vs. Heller, the conservative majority on the Supreme Court made new law by exercising their judicial activism by establishing a new individual right to keep and bear arms for personal home defense. That law had never before been made by the Constitution or by Congress, yet the conservative justices established it. The majority did so only by erasing all meaning from a complete clause of the Constitution and improperly turning a substantive and purposive clause of the Constitution into a mere historical preface. The majority could only make their new law by turning the purposive clause into mere surplusage in a manner contrary to the long established and settled tradition of interpretation that prohibits such a construction.

Fourth, there is an entire area of law known as the Law of Equity in which the judge makes the law simply by deciding what is fair between the disputing parties. On appeal the reviewing courts affirm the law that was made on the basis of whether or not it was fair and just. In these cases, similar to the second example above, the law is made by the court by exercising its discretion in judgement even though it may be said that the court is applying established rules or guidelines for fairness. The law lets the court do one thing or another and the judge decides whether it is more fair to do this or to do that. That decision makes the law that becomes enforced in that situation.

So, the courts and judges and justices are commonly and frequently making laws and it is a disservice to the American people for Judge Sotomayor to endorse the Republican conservative propaganda that frames American jurisprudence as only applying the law and not making the law in those cases where the law is grey or silent.

The second major area in which Judge Sotomayor is doing a disservice to the American people is by retreating from her "wise Latina" observations. The Republicans have browbeat most people and have effectively taken over control of the frame work of the discussion. One notable exception is Senator Sheldon Whitehouse from Rhode Island whose opening statement in the confirmation hearings should be required reading for all Americans interested in our system of justice. However, Judge Sotomayor has not followed the lead of Senator Whitehouse and instead has followed the lead of the Republicans and said that personal experience should not influence a judges decisions. This is a patent charade being put over on the American public. Of course every judge brings their personal experiences to the bench in their decisions and to even suggest otherwise as the Republicans do is to perpetuate a massive educational fraud.

As Senator Whitehouse observed in his opening statement, there is a definite role in the law for empathy, especially for the minority and the down trodden. We have a democracy that has the core value of majority rule, but that majority rule is only democratic if, and to the degree that, it is balanced by the respect for and upholding of minority rights. Here are some excerpts from Senator Whitehouse's opening statement:

Let me emphasize that broad discretion. As Justice Stevens has said, "the work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment - a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision."

It has been a truism since Marbury v. Madison that courts have the authority to "say what the law is," even to invalidate statutes enacted by the elected branches of government when they conflict with the Constitution. So the issue is not whether you have a wide field of discretion: you will. As Justice Cardozo reminds us, you are not free to act as "a knight-errant, roaming at will in pursuit of [your] own ideal of beauty or of goodness," yet, he concluded, "[w]ide enough in all conscience is the field of discretion that remains."

The question for this hearing is: will you bring good judgment to that wide field? Will you understand, and care, how your decisions affect the lives of Americans? Will you use your broad discretion to advance the promises of liberty and justice made by the Constitution?

This last point is the one crucial to understanding why the Republicans want to erase empathy from our nation's courtrooms. When judges have no empathy they are not concerned about the affect their decisions will have on the actual lives of people. In this way Republicans would have us believe that the courts do not and should not care how their decisions affect people. This is of course obviously wrong headed and detrimental to the American way of life, yet Republicans would have people believe that empathy should not play a role because where empathy plays a role in justice, the oppressors and exploiters could not use the law to continue their oppression and exploitation.

What Republicans do not want Americans to know is that American law has built into it the common law principle that oppression and exploitation is wrong. In this regard Senator Whitehouse stated:

The Founding Fathers set up the American judiciary as a check on the excesses of the elected branches, and as a refuge when those branches are corrupted, or consumed by passing passions. Courts were designed to be our guardians against what Hamilton in the Federalist Papers called "those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people . . . and which . . . have a tendency . . . to occasion ... serious oppressions of the minor party in the community." In present circumstances, those oppressions tend to fall on the poor and voiceless. But as Hamilton noted, "[c]onsiderate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day."

The courtroom can be the only sanctuary for the little guy when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, fitting, and intended function of the judiciary in our constitutional structure, and the empathy President Obama saw in you has a constitutionally proper place in that structure. If everyone on the Court always voted for the prosecution against the defendant, for the corporation against the plaintiffs, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, even upended, when the Constitution or laws may require; where the comfortable can sometimes be afflicted and the afflicted find some comfort, all under the stern shelter of the law. It is worth remembering that judges of the United States have shown great courage over the years, courage verging on heroism, in providing that sanctuary of careful attention, what James Bryce called "the cool dry atmosphere of judicial determination," amidst the inflamed passions or invested powers of the day.

Chief Justice Earl Warren said something similar in his memoirs when discussing why some decisions of the Supreme Court are controversial:

"I venture to express the hope that the Court's decisions always will be controversial, because it is human nature for the dominant group in a nation to keep pressing for further domination, and unless the Court has the fiber to accord justice to the weakest member of society, regardless of the pressure brought upon it, we never can achieve our goal of 'life, liberty and the pursuit of happiness' for everyone."
From: The Memoirs of Earl Warren (1977) page 335

Justice Warren also said in his Memoirs,

"I am certain that my lifetime experiences, even some of the earliest ones, have had an effect on the decisions I have rendered...."

One must ask why is this so frightening to Republicans? This basic question is not asked and Judge Sotomayor is not asking it, much less answering it. Isn't it abundantly clear that the kind of decision making by the Warren Court that opened up a new era to make "justice for all" a more nearly actual reality goes hand in hand with empathy and experience being used in judicial decision making? By removing empathy and experience from judicial decision making the Republicans hope to return the courts to the side of the oppressors and exploiters, and by all measurements they are succeeding.

In the same manner that Republicans in Congress are turning back the clock on the New Deal, Senator Whitehouse reminded us in his opening statement how the Republicans on the Supreme Court have used their judicial activism to turn back the clock on the Warren Court:

The "umpire" analogy is belied by Chief Justice Roberts, though he cast himself as an "umpire" during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that "[i]n every major case since he became the nation's seventeenth 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." Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, "has served the interests, and reflected the values of the contemporary Republican party"? Some coincidence.

Please do not be fooled by this educational fraud being perpetrated on the American people by Republicans. A court without empathy is not a fair and unprejudiced court, rather it is a court extremely prejudiced in favor of "the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." That most certainly is not unbiased law based on keeping empathy and personal experience out of decision making.

The very sad fact of the current state of affairs in our nation is that the best nominee the Democrats can come up with for the Supreme Court is a centrist judge without a liberal or progressive track record who seems to buy into the Republican fraud that empathy and personal experience do not belong on the judicial bench.

One can only hope and dream that when she is placed on the Supreme Court that the freedom of her position will open her eyes in the manner of an Earl Warren to see that empathy and experience do definitely have a place in her decisions making.