I once had a job which required me, from time to time, to speak on the record to newspaper reporters and their supposed equivalents in the broadcast media. The people who were responsible for my office's relations with the same people inevitably cringed when this happened because, as they explained it, my insistence on describing legal matters with literal correctness did not make for the right sound byte and would not be understood by an easily bored public. I thought then, and even more so today, that talking in the shorthand I was asked to use did more harm than good because it made the law seem subordinate to the personal opinions of government officials and judges.


This week presented several examples of the damage this kind of public discourse does and how it bleeds into such issues as whether a particular judge should become a Justice of the Supreme Court. Judges do not "rule" in a vacuum, as those debating Judge Sotomayor appear to assume. She did not, for instance, decide to throw out the results of a firefighter's exam in New Haven because no black applicants passed it, nor did she, as one political commercial has it decide that fire fighting or the other heroic tasks that are to be performed by those hired by New Haven should be subordinated to some politically correct views that she has about the process New Haven should apply.

Judge Sotomayor was, in fact, one of three judges who were required to decide if another judge was right when she ruled that the Mayor of New Haven and three of his appointees who actually made the decision to void the exam and members of a Civil Service Board empowered to review those kind of decisions who approved of it, did not violate a federal law, the First Amendment or the equal protection clauses of the Fifth and Fourteenth Amendments by that decision. From what I know of the case, it seems as if it was a difficult decision to make and I am sure it was a close call in making that decision. But Judge Sotomayor, nor any federal judge made that decision. The Mayor of New Haven and several of his appointees did, and it was confirmed by a board set up by Connecticut or New Haven law to review those kind of decisions. If the people of New Haven don't like that decision, they can vote for a new Mayor someday and they can change Connecticut law if they must.

All that Judge Sotomayor and her two colleagues did was to agree with what they called a

thorough, thoughtful, and well-reasoned opinion

by a federal District Judge named Janet Bond Arterton who said the decision did not violate federal law or the two constitutional provisions raised by the would-be firefighters unhappy about the decision made by their duly elected political representative and his appointees, as well as the board.

Judge Sotomayor and the other two appellate judges said that from their review of the case it appeared that

the Civil Service Board found itself in the unfortunate
position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable ... claim. [under the statute he believed to be at issue, called "Title VII"]. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

You may disagree with the decision made by the New Haven officials or the conclusion of the judges who have reviewed it so far that the statute does not require the New Haven officials to reach a different conclusion than the one they reached (though I imagine most on Daily Kos or TPM do not). If so, you might seek to amend or change federal law though the Supreme Court may hold that the existing statute does require the Mayor of New Haven, his appointees or the civil service board to reach a different conclusion than the one they wanted to reach. If the statute does not require the New Haven officials to reach the decision they made, and you are angry about that decision, you may elect a different Mayor who would reach the decision you would like. To be angry with Judge Sotomayor or to suggest she made this decision is absurd. (George Will knows this. He is just pretending to be an idiot because that's what his teammates want from him).

The same goes, I am afraid, for those who, like me, were unhappy about the amendment of the California Constitution to provide a legal pronouncement by the state about who is allowed to say that they are "married." It is an astoundingly stupid decision to establish a constitutional definition of such a word and the motivations of the sponsors of such an amendment were base and, frankly, disgusting.

But the California Supreme Court was not charged with the decision to determine the wisdom of the amendment. They did not propose or enact it. The people of California did, according to other laws and provisions they have enacted in the past. They amended their Constitution so as to instruct the Court that the state henceforth did not want its constitutional guarantee of equal protection read the way the Court had to require that sme sex couples could "marry." For the Court to have said to the voters that they don't care what they did, the Court would not permit the Constitution to be amended that way would be extreme and, in my opinion, call the entire judicial system of California into question.

The wisdom of allowing the public to vote provisions into a state Constitution in the way California does is questionable to say the least and it is one of the reasons such unfathomably stupid and wrongheaded amendments get enacted. But to say that the California Supreme Court ruled that gay people can't get married, or took away some rights is also ridiculous. The people of California did and they should be ashamed of themselves. The Court ruled that whoever got married before the voters did this stupid thing, are married. After that, well, the people rule.

Maybe David Boies and his new friend will be vindicated by their lawsuit saying the people of California cannot do what they did because it violates the federal Constitution. No court has held that yet and I am not sure I see the argument given the history of the Fourteenth Amendment and what it intended. Years ago, I was convinced that the inadequacies of the Fourteenth Amendment required further amendment of the Constitution to provide for "equal rights." An amendment to that effect passed Congress, I think, but was never ratified. That was not a court's doing. Those were our neighbors and friends.

And in a republic that's who gets to make most of these decisions either directly or through their elected representatives. We don't need new judges as much as we need new voters.

And, fortunately, they are a'comin'