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Sonia Sotomayor And Chief Justice Charles Evans Hughes

July 14, 2009

While the biography of a nominee to the Supreme Court is interesting, it is the philosophical and ideological arguments that make for a fascinating debate in the United States Senate.  We have witnessed some of that today with the confirmation hearings on Sonia Sotomayor.  I think we all have been highly impressed.

But the purpose of this post is not applause for Sotomayor, but instead concerns a brief paragraph I throw as a template of sorts over the current political process playing out in the Senate.  When does one use ’empathy’ or emotion over constitutional law when writing a ruling when interpreting the U.S. Constitution? 

I started reading  (by design) “The Court Years” by William O. Douglas, who served on the Supreme Court from 1939-1975.  He has long fascinated me, and as such I have kept his autobiography on my reading pile until just the right time.  I still am not sure how I have such patience for books to be held until the right moment, while having little patience for other things in life.  Anyway, the book is filled with tidbits and gossipy extras that makes it highly enjoyable, and I strongly recommend it for those who love the Court or inside Washington intrigue.  The law is dissected, and cases revealed in wonderful detail that will delight every type of reader.

Now to the point of this post……..finally…….

Near the start of Justice Douglas’ tenure on the Court , then Chief Justice Hughes  “…made a statement to me which at the time was shattering but which over the years turned out to be true:  “Justice Douglas, you must remember one thing.  At the constitutional level where we work, ninety percent of any decision is emotional.  The rational part of us supplies the reasons for supporting our predilections.”

Are we surprised that a Chief Justice would admit such a thing?  And would we want it any other way?  Really?

After all we put humans on the bench, not emotionless empty-souled robots.  Getting the right temperament in a highly motivated and brilliant jurist should be the top of the list for being nominated.  After that I think it fair to say a number of other human factors take over that help result in rulings.

It should come as no surprise to anyone that this is how it really is on the Court.  Today however I swear that some in the GOP would do well to curl up with William O. Douglas’ autobiography tonight before the hearings start again on Wednesday.

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