Justice is supposed to be blind and it is that canon that's at the center of attacks by conservatives against Sotomayor. There is a concern that her comment about a "wise Latina" means that she will take her bias to the bench and adjudicate based on that bias. That's a fair point but I'd like to point out some things that, to me, dispel the idea of "justice is blind."
People on trial are presumed innocent until proven guilty. That is a canon as well and one that, to me, is quickly disappearing in reality. However, my point is, isn't that bias? Here is where some may say the bias she represents is a bias of "a group" against "the individual" and that is the problem.OK, that's a point I counter with the idea that the police are given deference in testifying before the court AND in their actions on the street. Let's take the last, first.
The "non-activist Supreme Court" has increased the rights of police to make stops and searches of property without a warrant. If you are driving a car and are stopped, the Supreme Court has ruled that the police just need "reasonable belief" of wrong doing to search your car. The "non-activist" Supreme Court has increase the power of the group, the police -- actually, the Government -- to search you and/or your possession.
When testifying in court, juries are expected to give more weight to the testimony of a police officer than the testimony of those on trial. Think about this. Many conservatives have spoken out against juries in "urban areas" because they don't give deference to the testimony of police officers over defendant's. (Personally, I think they should both be weighed the same UNTIL on or the other demonstrates their integrity is in question. Just because a person is on trial, the person's integrity is not automatically suspect. That person's integrity is shown to be suspect by the case built against the person on trial). When the "urban juries" don't believe police testimony, people scream "jury nullification."
And speaking of activist court, why isn't the Supreme Court said to be activist when it is working to take less cases per session?
But I'm not a lawyer and I don't play one on the 'net, so what do I know?
I have a couple of points for now.
American courts, being stacked as they've been with ideological conservative judges for the better part of 30 years, haven't "increased" the rights of the state and law enforcement agencies as much as they've (generally) relaxed limitations upon the state's exercise of power. I'd add the courts have been enabled by an American real politik whereby civil liberties are routinely ignored and freely abdicated.
I realize your use of "non-activist" is tongue-in-cheek, but there's really no such thing as 'judicial activism'. The reality is judges, through their interpretation of law, occasionally set policy.
Juries are instructed to give no more weight to witnesses for the prosecution than they are to witnesses for the defense. AAMOF, juries are cautioned against inferring a defendant's guilt from his decision to not incriminate himself through testimony.
Posted by: MIB | July 14, 2009 at 10:52 PM