May 31, 2009

The non-lawyer nails it

In the Milwaukee Journal-Sentinel's contribution to the Sonia Sotomayor "controversies" yesterday, U.S. Senator Herb Kohl, contra Chief Justice John Roberts, observes:
As all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.
The sports metaphor, of course, was Roberts'. But appeals court judges make rules all the time. They also make policy. All the time.

Last week Justice Antonin Scalia, speaking for a 5-4 majority,* wrote up some policy for law enforcement in Louisiana — and, given the U.S. Supreme Court's jurisdiction, the rest of the country — when he retooled the circumstances under which a criminal defendant may be interrogated after having been appointed defense counsel.

Show me an appellate decision and I'll show you the policy announced. Judge Sotomayor's sin was stating an obvious truth, about which many fans of a "conservative judiciary" are in complete denial.

Hence her joking in the immediate wake of having stated it.

Speaking of non-lawyers, Donald Downs, twice identified by the Journal-Sentinel as "a professor of law" under the heading "Legal scholars [sic] weigh in," is in fact a professor of political science.

* Montejo v. Louisiana (.pdf; 42 pgs.)

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