Where Sotomayor Sits
- First Posted: Aug 06 2009 16:26 PM
- Updated: over 1 year ago
New U.S. Supreme Court Justice Sonia Sotomayor is neither the dangerous radical her opponents have condemned, nor the liberal trailblazer her supporters are expecting.
By the end of this week, Sonia Sotomayor will become the newest Supreme Court Justice of the United States. This is noteworthy for a number of reasons, not least of which is that it will put an end to the tawdry partisan wrangling which has thus far characterized the process.
Sotomayor’s initial confirmation hearings, before the Senate Judiciary Committee two weeks ago, could charitably have been described as inane. From listening to the Republican line of questioning, a casual observer could have been forgiven for coming to the conclusion that America was rife with “reverse racism,” and thanking God for the heroic band of aged, white male Senators who were bravely, selflessly, and finally – finally! – taking action to emancipate white men from the yoke of racist oppression that they have so long suffered at the hands of Latina women.
I joke, but it was rather surreal to see Republican Senators lecturing the first Hispanic nominee in the history of the high court on the importance of equality for all and the need to judge with impartiality, given her 17 years on the bench. When Senator Tom Coburn went on to quote a Ricky Ricardo line from I Love Lucy, jokingly declaring that the Nominee would “have some ‘splaining to do,” the proceedings seemed to have deteriorated into pure farce. (Though some took offense at this, the comment was probably less disturbing for its questionable racial appropriateness, than for clearly exposing that Senator Coburn’s pop culture awareness had stalled in 1957.)
The problem is that in the United States, the selection of a new Supreme Court Justice has long since become a political football. The President’s party tries to shepherd his nominee through, while the opposition uses the occasion to rile up their base. Invariably, the nominee is “exposed” as radical and somehow dangerous to the American way of life. A caricature is drawn which is sure to outrage and energize opposition supporters. In following this strategy, the Republican members of the Judiciary Committee essentially ignored Ms. Sotomayor’s extensive judicial history of thousands of decisions, and focused instead on a few lines taken from an old speech. The now infamous “Wise Latina” comments were used to caricature the Judge as somehow either biased against white men or, by the less subtle, as an out and out racist.
A full reading of the text of the speech makes it clear that Sotomayor was saying that the life experience of a Judge can come into play in decisions, unless checked, and that all humans interpret events through the filter of their experiences. This is undoubtedly true, and it is telling that Sotomayor’s follow-up statement, stressing a Judge’s need to control such automatic reactions, as expressed in the speech scant paragraphs later, was ignored: “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions, and perspectives.”
Indeed, Senator Coburn’s Ricky Ricardo moment is a clear example of exactly what Sotomayor was talking about. Unless recognized and controlled, one’s reaction may be unwittingly shaped by experiences that are long forgotten: here, when dealing with a Hispanic person, the Senator’s response was informed by an early “experience” with what he perceived to be like people.
In playing to their base, certain opponents of the Sotomayor nomination also predictably had the kneejerk reaction of immediately dismissing the Judge as an unqualified “affirmative action” pick. On the facts, this is patently absurd. Sotomayor graduated Summa Cum Laude from Princeton, before going on to Yale Law School, where she edited the Yale Law Review (a position awarded on academic merit). In 1992, she became the youngest Judge in the Southern District of New York, when appointed by the first President Bush, a Republican. In 1998, she was elevated to the Court of Appeal by President Clinton. She currently has 17 years of experience on the bench – more than any currently sitting Justice on the Court at the time of their nomination. Critics of the Nominee are correct when they say Ms. Sotomayor is not qualified for a Supreme Court seat; she is, rather, immaculately qualified.
To date, there have been 110 U.S. Supreme Court judges. One-hundred and eight of the 110 have been men, and the same proportion has been white. Judge Sotomayor will be the third woman, and first Hispanic person to serve on that body, but anyone with serious doubts as to her overall qualifications for the post has either not been paying attention, or is likely incapable of believing that any Hispanic woman is capable of being so qualified.
This is not to say that there wasn’t an element of political gamesmanship in her nomination. Sotomayor presented the Obama administration with the bonus of putting the Republicans in a difficult spot: recognize her qualifications and quietly confirm her, and they risk angering their base; stridently oppose her nomination and potentially draw the ire of the fastest growing demographic in the United States. Judging from the overwhelming Republican opposition to Sotomayor’s confirmation, it appears that the latter risk was judged the lesser of the two evils. Suffice it to say, the Democrats are laughing all the way to the polling station.
Perhaps the most interesting thing about all of this, however, is that it may not be the Democrats who have the last laugh with respect to this nomination.
As noted, Judge Sotomayor is clearly qualified to ascend to the high court, but whether she will turn out to be what certain of her more fervent supporters want, and what her political enemies caricature her as, is another question entirely. An examination of her judicial record indicates that anyone expecting her to be a trailblazing left wing foil for Justice Scalia, the Court’s acerbic conservative thought leader, is likely to be disappointed. The reality is that Judge Sotomayor’s rulings are decidedly moderate, and that her judicial history is that of a mildly liberal centrist – this not someone blazing a new liberal trail in American juridical thought.
I don’t mean to damn with faint praise. Her rulings have the reputation of being thorough, technically sound, and well reasoned. As with the vast majority of judgments, however, they are not considered marked by uncommon intellectual brilliance or radical, left-leaning views. In other words, Sotomayor has produced strong, but mainstream rulings over her time on the bench.
Sotomayor is unlikely to prove the radical liberal trailblazer that some on the left hope for, and others, on the right, fear. In the current age of attack politics in America, the reality is that those sort of bold judicial crusaders, on either side of the political spectrum, are no longer even nominated, much less appointed to the Supreme Court. As for why even moderate selections must now be reflexively demonized as such? Well, on that count, it’s not Sonia Sotomayor who has some ‘splaining to do.




















Comments
Re:Marks
“ From a political viewpoint, the two aspects of this which draw attention are the fact that Sotomayor, rightly characterized as a "mildly liberal centrist," should draw such attention, and that, as Darren Thorne argues persuasively, it was thought the risk to antagonize voters of Hispanic ancestry. So, Sarah Palin lives! We will see where this takes them. They are playing the race card every chance they get.
Mark Goodman