I was going to write a comment on the Sotomayor confirmation hearings, but I decided not to. If I had written a comment I would certainly have noted the bravado with which Senators Grassley, Graham and Sessions paraded out their rock-like stupidity for anyone to see who wanted to. And I suppose I would have had to remind them that common sense counsels avoiding the useless. If you can do something, figure out how and act. If you can’t do something or can’t figure out how to do it, sit down and shut up. Inscrutable silence is rarely paled by futile gestures. Evidently preferring the callous to the empathetic the trio proceeded to spout grammar school pablum as if it were profound and make crystal clear that their lack of common sense is almost matched by their ignorance of the job a judge does. But, as I say, I decided not to write the comment.

To do so would have required me to explain to this gang of three that rigid adherence to the law, strict construction and blind application of rules are not so much goals as they are irrelevancies. To be sure, on occasion the rule is clear and its application is distasteful. I attended a mandatory training for judges on fairness in which we were lectured on avoiding discrimination against the handicapped, the opposite sex, other racial groups, persons of different backgrounds, poor people and homosexual persons. What we didn’t get training in was the rather more common difficulty of having to rule against a genuinely decent person in favor of a jerk. Sometimes the jerk is right. The underlying difficulty in achieving fairness is to recognize the negative response we have to some and the favorable response we have to others and try to set that aside in rendering a decision. But this is judging at the street level. At the Supreme Court level the justices generally don’t even hear or see the parties actually involved in the suit and often as not they are not even real people but rather legal entities or organizations. To explain the issues involved at that lofty level would require a comment longer than the one I decided not to write.

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And it would have required that the three have some knowledge of history. When the court decided that it had the power to rule on whether acts of Congress were constitutional or not, it didn’t do so because there is a clause in the Constitution that says so. There isn’t. Ah, those liberal justices. Those policy makers. When the court decided that there is a fundamental, individual right to privacy, it didn’t do so because the Constitution lays it out in so many words. It did so because in its view the Constitution fairly read intended to keep the government out of your bedroom unless it had a darn good reason for being there. The Constitution doesn’t contain a laundry list of potential targets of discrimination. It just says everybody should enjoy equal protection of the law. It’s left to justices to decide whether this includes the fat, the ugly and the ignorant. The constitution says people should be able to have guns because we need a militia from time to time. Since we don’t need militias anymore as we now have a standing military, should people still have the right to have guns? Of course since we can have an army of one maybe we should allow a citizen to claim to be a militia of one. Cases involving Constitutional rights don’t require justices simply to find the rule and apply it. We could have computers do that at considerable savings. Such cases require a consideration of the world we live in and how the general principles set out in the Constitution will best be realized in it. That justices will have differing perceptions of the world and how their decisions will impact it should only surprise fools. And it could only offend certain Senators. So you can see why I decided against writing a comment. Too much work.

And, Senators, you don’t make the job any easier. You write laws that often raise more questions than they answer. And it’s not like you were all on the same page. Your laws are the work of at least a majority of about 500 people. When the justices are called upon to consider what you were thinking, to ferret out the legislative intent, they have a chore. There are rules they follow to discover your intent, but the rules are ones judges have made up and they incorporate a fair amount of flexibility. So when two parties come before the Supreme Court disputing what some law means or doesn’t mean it’s not like all they had to do is look at the often poorly drafted words you wrote and bam there it is. They have a lot to consider and that often involves a consideration of the impact of the decision in the real world. Why would I want to waste my time laying all this out for you? You harp on one decision in particular. Look at it. Cities, among other entities, are not supposed to discriminate on the basis of race. They give a test for a promotion. All the white people who take it do well. All the black people who take it don’t. Because all of the people, black and white, who take the test have been doing the same job and by all accounts they have all been doing it well the city wonders whether or not there might be something wrong with the test. Maybe the test contained some implicit bias. And the city also thinks that it might get sued about the test and it has no interest in wasting taxpayer money on a lawsuit. So the city scraps the test in favor of giving another test. The whites who did well on the first test sue on the ground they have been discriminated against. The law provides that one indication of discrimination is a disparate result. Here the result of the test was clearly disparate. Is it crazy to think maybe the test discriminated unfairly? Sotomayor decided the city should have the right to scrap the test and give another just to see. The Supreme Court in a split decision decided that without more than the mere disparate result it shouldn’t. Can reasonable people disagree about this issue? Sure. But our three boys find this to be a shocking example of reverse discrimination. You see what I’m working with here. Can you blame me. Nope. No comment from me. I would be chiseling stone with rubber. That would be futile and demonstrate a lack of common sense. Nope. No comment from me. I’m seated. Mouth shut. Sorry.

Oh, all right, if you insist. But, mind you, it’s against my better judgment. There is the “Latina woman with certain experience could make a better decision than a white guy who doesn’t have that experience” thing. This gave our trio conniptions. Boys, it’s true. A person who has experience with something will probably make a better decision than one who doesn’t. A Latina woman who grew up in an urban housing project has experience that some white guy doesn’t have. That experience will and should inform her perception of the world and her sense of how decisions will impact people in that world. You have a problem with that boys? You think it’s racism? Well, boys, as they used to say on the playground, you started it. And you, Sessions, if memory serves, lost your shot at a judicial appointment because of your affiliation with the KKK. Do we sense a little sour grapes here, my man.

Folks, the depressing thing about all this is that our trio can say shamelessly stupid things in public because there are enough stupid people out there to listen to them … and okay, write about them. Darn it.