Fidelity to the Law

As everyone with more grey matter than a Republican senator knows, the stock phrase Sonia Sotomayor invoked in her statement to the Senate Judiciary Committee yesterday, that her guiding principle as a judge has always been “fidelity to the law,” implies exercising judgment; after all, what else are judges are for. [As everyone also knows, in exercising judgment, one cannot help but rely on one’s own life experience; what else do the Republican Sentators think all those white male Supreme Court Justices have been doing all these years!] However, judges exercise judgment within the sometimes broad, sometimes narrow constraints of the legal system. They draw conclusions in “gray” areas where reasonable people can disagree about what the law requires. But not all areas are gray. “Fidelity to the law” implies recognition of this fact as well.

Until the past few days, the Obama administration – intent on “looking forward” – has been, to put it mildly, unmindful of Sotomayor’s guiding principle. Along with a compliant media, intent on promoting the rather dubious idea that serving justice would be a “distraction” from Obama’s domestic and foreign “agenda,” they have been the main protectors of the Cheney-Bush torture regime. But now, finally, key House and Senate Democrats have stopped playing ball with the administration on this point. This happy turn of events has come about, it seems, because CIA Director Leon Panetta told them that Dick Cheney told the CIA to keep Congress in the dark about a pet assassination program of his. [If this allegation turns out to be true, as it surely will be (if it is properly investigated), that would in itself be a violation of U.S. laws dating back to the Ford administration.]

With key Democrats on board, The New York Times was sufficiently emboldened to confirm what journalists not “of record” have been reporting for a long time. Thus the truth has been brought in from the margins, setting a process in motion that is more consistent with Sotomayor’s principle than Obama’s practice to date. Obama might still quash it, of course; but with each passing day, as “revelations” mount, he’d have a harder time doing so. The very egregiousness of the Cheney-Bush administration’s infidelity to the law is now forcing the prospect that justice (or, more likely, some semblance of justice) will be served.

Thus Attorney General Eric Holder is floating the prospect of a special prosecutor (though it isn’t entirely clear yet what his or her mandate would be). Neither is it clear whether this is Holder’s initiative or Obama’s; no one outside the highest echelons of the Justice Department and the White House really knows how much freedom of action Holder has in these matters. But whatever lies behind what Holder is reported to have in mind, the appointment of a special prosecutor is an initiative worthy of enthusiastic support. It is therefore urgent that we bring public pressure to bear! The Justice Department and the White House must be made to understand that, notwithstanding all the slack Obama’s admirers are eager to cut for him even as he betrays their “hopes” for “change,” now is the time to make “fidelity to the law” the Obama administration’s guiding principle too.