It's the broken system, stupid

In 1953, the Executive branch grew a little stronger thanks to United States v. Reynolds. In this civil suit, the U.S. government refused to release confidential documents to the plaintiffs, claiming that doing so would endanger national security. The courts agreed to defer to the government's judgment, and the case was dropped.

United States v. Reynolds gave rise to the the State Secrets Privilege, the civil court equivalent of the Classified Information Procedures Act. Basically, this decision granted the U.S. government the right to exclude from court proceedings sensitive information that could endanger national security.

Almost fifty years later, the evidence the government withheld in United States v. Reynolds was declassified and released. As it turns out, this evidence contained nothing confidential; rather, it had embarrassing details that would have sunk the government's case. Clearly, the government's action here was an abuse of power, and given that, it would have made sense to ensure that some checks were placed on the State Secrets Privilege.

Unfortunately, it is much easier to bestow power than it is to take it away. The government managed to ease the fears of the civil libertarians. The abuse of the SSP was blamed on the power-hungry politicians of the past and the government promised that in the right hands, the State Secrets Privilege would make America safer. And the power continued unchecked...

The Bush administration welcomed the SSP, and invoked it a record number of times during its tenure. As we are now beginning to find out, much of the evidence that was hidden from the public eye with the SSP was not confidential at all; it was evidence that would have embarrassed and compromised the Bush administration had it been released. And yet the power continued unchecked...

The fluffy and charming Obama admistration fares no better than the Bush administration in reining in the SSP. In Mohamed v. Jeppesen, the Obama administration took this power a step further and tried to dismiss not only evidence, but the entire case itself (to which the government is not even a direct party) ostensibly due to national security secrets. And the power continues unchecked...

If there's one lesson I've gathered from the State Secrets Privilege debacle, it is that if the system is broken, fix the system.

If the American political system is such that you need a perfect human being to make sure you don't start a war or torture people, then the system is broken. Maybe every 200 years or so, we may be lucky enough to find political leaders benevolent and intelligent enough to largely stamp out corruption and injustice in our country, but why wait 200 years for that? I don't disagree that it is unlikely we will ever find laws and constitutions perfect enough to render even a Pol Pot or Mussolini innocuous, but if we could reduce our dependence on the fleeting sense of virtue in power-hungry politicians, we would be better off. President Obama was the message of hope for many optimistic Americans, but I wonder if we should not be on our guard a bit more.

Context is key

In 2001, Judge Sonia Sotomayor gave a speech at the University of California, Berkeley School of Law on the role gender and racial identity have in a judge's interpretation of laws. Given the partisan nature of confirmations to the Supreme Court, it is not surprising that this speech was twisted and contorted to serve the interests of her critics. In particular, I want to focus on one tidbit from the speech which has been the playpal of many a Sotomayor critic.

At one point in her talk, Sotomayor says the following

"I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others."

Taking her words a step further, this quote seems to suggest that Sotomayor believes that unbiased decisions will never be a reality in the courts. That in itself is not an earth-shattering idea (can an ideal in any instance ever be attained?), but she leaves open the question whether an aspiration to impartiality, because it cannot be more than an aspiration, has any function at all in the courts. Should judges refuse to keep their personal prejudices and biases in check whilst reaching decisions given that, as Sotomayor believes, their efforts will never free them of the choke hold of their background? Indeed, this quote, taken out of context, paints Sotomayor as a judicial extremist, a candidate for the High Court who believes that because judges cannot be perfectly impartial, they ought to sit back and let their race and gender define them.

Yes, Sotomayor does take the view that judges cannot achieve perfect impartiality. She does not, however, leave it at that. Further on in her speech, she goes on to say

"I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

And therein lies the soundbite that critics of Sotomayor leave out when discussing her judicial extremism. Going back to my previous point, Sotomayor confirms that point that I believe many of us are apt to agree with: that the impossibility of reaching an ideal does not mean we shouldn't do our utmost to reach it. Judges should not confer their verdicts with the air of superiority, believing that they possess an infinite wisdom. Rather, humility in rendering a decision, whether that means admitting that the precedent in a certain case is unclear or recusing oneself from a case in which one's prejudices will be unwieldy, should be the quality we look for in judges. In writing this post, I have not decided to join the You Go Latina! Sotomayor bandcamp; but I did become more wary of the age of Gotcha journalism. That being said, if anyone would like to forward Judge Sotomayor's entire speech to some of her critics, you will be doing them a favor.