Mitt Romney Doesn’t Understand the Courts

Mitt Romney’s weak attack on Sotomayer shows a startling failure to understand her statement or our judicial system.  And this guy wanted to be President?!

Romney said (via CNN):

“The nomination of Judge Sonia Sotomayor to the Supreme Court is troubling. Her public statements make it clear she has an expansive view of the role of the judiciary. Historically, the Court is where judges interpret the Constitution and apply the law. It should never be the place “where policy is made,” as Judge Sotomayor has said. Like any nominee, she deserves a fair and thorough hearing. What the American public deserves is a judge who will put the law above her own personal political philosophy.”

Her comment in full context (emphasis mine):

“All of the legal defense funds out there, they are looking for people with court of appeals experience because the court of appeals is where policy is made,” she said, laughing a bit through the next part: “And I know this is on tape and I should never say that because we don’t make law. I know. Okay, I know. I’m not promoting it. I’m not advocating it. I know.”

The thing is, she’s right (Huffington Post):

“She’s not wrong,” said Jeffrey Segal, a professor of law at Stony Brook University. “Of course they make policy… You can, on one hand, say Congress makes the law and the court interprets it. But on the other hand the law is not always clear. And in clarifying those laws, the courts make policy.”

As Segal noted, one of the most recent cases heard by the Supreme Court — itself a court of appeals — involves the strip search of a 13-year-old who school officials believed was carrying ibuprofen. “There is no clear knowing statement whether officials can be sued for that sort of behavior,” he noted. “So when justices come up with a decision on that, they would be making policy.”

What Sotomayor was doing was acknowledging a reality of our current legal system.  She wasn’t advocating for it.  That’s a pretty important distinction Mitt Romney failed to grasp.


9 Responses

  1. Republicans in general don’t understand American jurispudrence, that is Common Law. Instead they want to impose a Napoleonic Code system on American courts. How very French of them.

  2. I think Romney is right. She knows she will create policy, it’s just not what it’s supposed to look like, so she hesitates saying she is going to do it, because she was caught on tape saying it. This woman has an agenda, and it isn’t constitutional or blind justice. That’s why Pres. Obama picked her. She will not be a fair judge. We’ve seen that already in the firemans lawsuit.

  3. Another person who proves my point by not understanding how the American legal system works.

    • Judges like that are called “Imperialistic Judges” when they create policy or legislate from the bench. But thanks for the insult. At least I know I’m on the RIGHT side.

      • You clearly do not understand the word imperial, never mind our legal system. Case law is a major part of our legal system. Court rulings and legislation are meant to check each other’s power.

        Further, you are completely failing to understand her quote.

        Since you are hinting you are a right winger, in so many ways, why not just come out and say why you oppose her? You are afraid that if this country passes laws that discriminate on the basis of sex or sexuality, she will rule them unconstitutional, thus “creating new law”. In fact that is a central purpose to the courts: to defend the rights of the minority against the tyranny of the majority.

        • I wasn’t hinting. But I consider myself a constitutional moderate. More conservative than not. But liberal is a great word, and I really believe the liberals have it right that they want to be so giving and liberal. However, it is not the government’s job to decide that we are liberal. It is up to each man to disperse his funds how he sees fit. It is not up to the government to dictate that. Read Bastiat’s “What is seen and what is not seen.”

          I don’t believe Sotomayor would be a bad judge because she would not allow discrimination, but rather there would be reverse discrimination. We are business owners, my husband and I, and when we bid on a federal job, we are the ONLY group that is excluded. White male business owner. That is reverse discrimination. I believe everyone, black, white, Hispanic, whatever should have their opportunity before them fairly, but in a world that caters to the minority only because they are a minority, and not for reasons that legitimate, the playing field is not leveled, but the minority is elevated even if they aren’t the best person, or business for the job.

          Just my opinion. Again, you found it necessary to insult in order to get your point across. This is a common thing for the “left” to do.

          Our court system was intended originally by the founding fathers to be based on law on a case by case basis. We currently have precedent law, and our founding fathers didn’t want that because then lawyers and judges would be creating that precedent and others would follow even if their interpretation of the law was poor.

          • I am not insulting you, I’m stating that you do not understand our legal system.
            You seem to be supporting this with your replies.

            There is no real cause to believe she’d engage in reverse discrimination other than her race. You are making a racist assumption with no basis in fact.

            Our court system was based on english law. Does the British court system eschew precedent? No, it relies on it! Your statement is thus demonstrably false and without merit.

            Finally, let’s get this clear. I am not insulting you. I am calling out your false statements for what they are. Simply saying I am insulting you and then blaming everyone on the left for doing similar things will not make your baseless accusations magically true. Criticism is not a personal attack. It is criticism.

  4. They are not baseless. Maybe you need to go back and look at some of the cases she ruled on. In her own words, “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

    She is basing her arguments on her race, as if a white man could never have lived a life of poverty and rose above it all, as she has. That is a VERY racist statement.

    • Those “own words” you cite are not from a case. They are from a speech. Are you aware of the context? Of what she was saying? I don’t think it was the wisest way to say it, but she’s basically arguing for diversity on the court.

      When she says “a white male who hasn’t lived that life”, she’s not saying a white male could not possibly have lived a life of poverty. Come on, she’s no idiot, and neither are readers here. No one will buy that. A white male will not have directly experienced racism, and that does make a difference. But what she appears to be saying is that she hopes having a judge on the court who has experience both poverty and racism might bring that experience to the table to help articulate and render just opinions.

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