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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, November 20, 2009

"the law"

And Also: The movie Downfall was in part based on the memoirs of a young secretary, Until the Final Hour by Traudl Junge with pre and post Hitler material added by editor Melissa Muller (who also has a bio of Anne Frank). Interesting perspective, almost trivial at first, but gets darker as the war goes downhill. Good notes on the dramatis personae -- wish more histories had that!


[Slightly edited for style and last paragraph / update added.]
“I don’t understand the concept of extraordinary success,” Chief Justice Roberts objected. “The results that are obtained are presumably the results that are dictated or commanded or required under the law.” The chief justice said the outcome of a case “should be what the law requires, and not different results because you have different lawyers.” Could a district judge really suppose, he wondered, that “if it weren't for how good you are I would have made a mistake?”

-- Linda Greenhouse

Greenhouse suggests that this sounds like Justice Sotomayor's motto of just following the law. Mr. Umpire here might have missed the point though as suggested by some replies to her piece. The result here was a successful challenge to problems in a foster care system. It was in some part a result of the efforts of the lawyers, who were able to obtain "extraordinary success." If it was just a matter of the law, as Greenhouse notes with tongue slightly in cheek, why would some pay John Roberts' upper scale fees? Maybe, it is not just what the law is, but how the case is made and applied?
“My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”

Justice Alito noted to the Federalist Society that this statement by Sotomayor was far from controversial, but some people were upset about it all the same. Controversy was not the problem, of course, and it is inane to suggest that was the problem. The problem was that "the law" is not a clear-cut affair, especially when discussed by someone who speaks about "wise Latinas." But, the saving grace is that her comment (and that speech) suggests she knows this, even if it is in bad form to spell it out to Congress. A bit of spin at the hearings is part of the program though some believe in utopia.

"The law" does command the result -- judges do interpret "the law." But, how does a judge determine the law? Part of the mix will be their "personal and professional experiences." These things "help [them] listen and understand" the law. By the nature of things, people with different experiences will view things somewhat differently. This is a good thing -- you have nine justices in part because they each will provide some non-fungible experiences and insights to the table.

They will likely see things differently in the process. Comparably, Holder saw things different than his predecessors. This doesn't mean any them are unreasonable. It does show that it is more than just following the law.

[Update: Here Roberts tosses a cheap shot against special masters, comparing them to clerks. Now, some might say clerks do have some power, but as the article notes:
Here are just a few ways in which special masters are different from law clerks: Special masters get paid upwards of $500 an hour, they collect the entire record of the case, hold hearings, manage the litigation from start to finish and make lengthy public recommendations to the Court that form the basis of the Court's resolution of the case.

No wonder Greenhouse in another context compared Breyer's questioning style to "Justice Scalia’s posturing on the bench and Chief Justice Roberts's badgering of counsel."]