D.G. MARTIN: Would Sen. Burr Have Liked Susie Sharp but Not Sotomayor?
Would North Carolina U.S. Sen. Richard Burr have supported Susie Sharp had she been nominated for the Supreme Court?
You remember Susie Sharp, the first female North Carolina Superior Court judge, the first female North Carolina Supreme Court justice, and the first female North Carolina Supreme Court Chief Justice.
And you noticed last week that Burr said that he will not support the nomination of federal Court of Appeals Judge Sonia Sotomayor to the Supreme Court of the United States.
Like Sharp, Sotomayor, in the words of Burr, "has impressive academic credentials, a lengthy judicial record, and a personal story that is inspiring to many Americans."
Like Sharp, Sotomayor is known as a tough judge, a hard worker, and a stickler for legal details and the careful application of applicable law and precedent.
Nevertheless, Burr asserts that he is "concerned with Judge Sotomayor's ability to adhere to long-standing case precedent and apply the law according to a strict interpretation of the Constitution."
He adds: "I am troubled by her decisions in cases where she appears to have relied on something other than well-settled law to come to a decision. My fear is that she has been unable to separate her personal belief system from that of the letter of the law."
Sotomayor must have anticpated Burr's "concern" when she said during her confirmation hearings that many senators had asked her about her judicial philosophy and she answered that question this way: "Simple: fidelity to the law. The task of a judge is not to make law -- it is to apply the law."
Burr dismissed those words of assurance. "While she stated in her testimony that she would adhere to legal precedent," he said, "her judicial record suggests otherwise. In several cases she has clearly ignored precedent or cited precedent that did not apply to the facts at hand, and I believe let her personal beliefs cloud her judgment."
What would Susie Sharp have told Burr about her judicial philosophy, and would it have satisfied his "concern"?
In her recent biography of Sharp, titled ironically "Without Precedent," author Anna Hayes demonstrated Sharp's respect for legal precedent, that is, the law made by the decisions of earlier judges, and for the state and federal constitutions.
But Sharp recognized that there were exceptions. Hayes quotes a letter from Sharp to Gov. Kerr Scott in 1950 when she was still a new Superior Court judge. "We depend on the Supreme Court, as well as the Legislature, to see that law changes with the times and grows to fit the body politic."
Later, as a Supreme Court justice, she led the court in reversing a long-standing doctrine of charitable immunity, which had prevented a patient from holding a charitable hospital liable for injuries due to the hospital's negligence.
Recognizing that overturning precedent was very serious business, Sharp carefully and persuasively demonstrated why changing times had made the older precedent out-of-date and unworkable.
Many, if not most, scholars of the U.S. Supreme Court, whatever their political persuasion, would agree that justices have to do more than simply identifying precedent and applying it to the case at hand. In the controversial cases that the court hears, there are many different and competing precedents and unsettled ones. And, from time to time, rarely, and only for good and persuasive reasons, precedent can and ought to be adjusted to reflect changing times and the intentions of the constitution's framers in light of present circumstances.
Judge Sotomayor said, or at least implied, that she would not agree with this view.
Chief Justice Sharp's words and actions indicate she would agree.
Now that Sen. Burr has turned down Sotomayor, is there any way he could have supported Sharp?
I don't have to tell you the answer.
D.G. Martin is the host of UNC-TV's "North Carolina Bookwatch," which airs Sundays at 5 p.m. This week's (Aug. 9) guest is Michael Davis, author of "Street Gang ," a history of Sesame Street.
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