Christy Hardin SmithCommunity

Beyond Sotomayor: Progressives And The Courts

This afternoon’s panel was a great discussion, and I enjoyed being a part of the mix.  For folks who missed it, C-Span has it available on their website.

We had initially thought about beginning with an opening statement from everyone, but decided that doing a more interactive opening question would be better.  What follows here is what I had planned for my opening.

It was so great to see several folks in person today — it’s always fabulous to put names and faces together.  Anyway, here’s what would have been my opening:

The rule of law is the foundation of this nation’s system of government, the bedrock on which the branches of government stand. Anyone who has studied basic civics knows that the legislative branch makes the laws, the executive enforces them and the judicial interprets them. If you watched any of the Sotomayor confirmation hearings, you heard it repeated throughout the Q&A.

Why am I here? Because, as a blogger and activist, I’m the person who asks all of you to make phone calls to Congress and the White House, to write letters, send FAXes and make a general fuss when things go wrong.

And, as citizens? That is our very important job. FDR was once meeting with a group that passionately believed in their particular cause and urged actions on its behalf. FDR famously told them, “I agree with you, I want to do it. Now make me do it.”

Our government cannot and should not work by fiat. We must make them do what we think is the correct course. That includes selecting appropriate people to sit on the federal bench, people who will make just decisions about our nation’s laws.

Part of how we do that is to elect better people to public office. We have another shot at that in 2010, of which I’m certain Rep. Nadler is more than aware.

Something we can also do is to take our responsibility with regard to the rule of law more seriously.

I am a lawyer by training and practice, having been both a small town lawyer in private practice and an assistant prosecutor at various points in my career. I’ve worked on divorces, criminal matters, juvenile and child abuse cases, represented a municipality, done some civil litigation and drawn up a few wills in my time.

What my legal practice has taught me is this: there is no aspect of our lives that is not covered by our nation’s courts.


There is no more important appointment than one to the bench. Especially in the federal court system where those are made as a lifetime appointment.

Since the time of Ed Meese and Robert Bork, the right wing has recognized this as a fact. And they have set up a complex apparatus to stoke the fervent GOP base over the nation’s judiciary over those years. From the more buttoned-down stylings of Federalist Society to their more rabid counterparts at Operation Rescue and elsewhere, the nation’s courts have become a fundraising bonanza for rightwing groups. Their role is to promote potential conservative candidates for office and the bench from the local level onward, and to keep the base on a fervor pitch on abortion and other hot button legal issues. And they want our Courts turned into rubber stamp for right wing ideology.

What are we doing on the left?

There are a few groups – several of whom you see represented on this panel, who are pushing back for a more representative court system which honors precedent instead of blatantly disregarding it for the betterment of a corporate bottom line or conservative philosophical point.

But we are not doing nearly enough.

And all of us – all of you and all of us up here – should acknowledge that when we cannot be bothered to act on behalf of the rule of law, we all lose. And that is how, far too often, it comes across: the left cannot be bothered to care about legal issues. What does that mean in real political terms? That the pressure for judicial appointments comes more forcefully from the right. So judicial considerations slant toward the “middle of the road” unless there is an equal push on the left for progressive judges as well.

That means that as we move forward, all those lifetime appointments will have less and less diversity of thought on legal philosophy. Thus, the nation’s courts will slant more and more to the right.

We must provide that counterbalance – all of us. Because there is no one else to do it but us.

Without robust debate on the nation’s appellate courts and SCOTUS, we lose an enormous opportunity to interpret the nation’s laws on behalf of individual liberties and concerns. Because progressive legal thought tends toward individual rights and “the little guy” in a lot of ways. Without that discussion in the mix?

Every single day Americans will pay the price for this. Just ask Lilly Ledbetter, whose sex discrimination claim for being paid less because she had the nerve to work while being female was denied by SCOTUS in 2001. Or the various Americans who were served National Security Letters to turn over library and internet service records wholesale – without any showing of necessity other than an uncheckable right granted in a rush under the Patriot Act. One which was later found to have been rampantly overused and abused.

The list goes on and on – in a government meant to be built on checks and balances, we have depended on our nation’s courts to provide that check throughout our history. Especially with regard to an overreach by the executive branch when a unilateral grab at power far exceeded constitutional boundaries.

We need to do more.

We can start by pushing for Dawn Johnsen’s OLC appointment to receive a vote on the floor of the US Senate.

We can push back on the hold that Sen. Jim Inhofe currently has on David Hamilton’s Appointment to the 7th Circuit.

We can let folks inside the Beltway know that we expect the rule of law to be honored. That the balance of powers is not just some token slogan that gets spoken but not honored. We can ask for accountability for those who have broken the law, including a full investigation into who authorized and pushed for the OLC torture memos – however high such an investigation might reach.

We must all ask for the things that are right – every single day. That is our job as citizens. Make calls to DC offices on the Hill. Make calls to local offices. Meet with your members of Congress and their staffers. In person. Write letters to the editor. Send FAXes. Call in to local talk radio. Talk with your neighbors, your friends, your family…get involved and stay involved.

Our elected officials take an oath of office which requires them to uphold the Constitution and the nation’s laws – we should hold them to that each and every day.

Citizenship isn’t easy, it’s hard work. But, as FDR said, we have to make them do it.

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com