We’ve Lost the War

By all accounts, Judge Sonia Sotomayor will eventually be confirmed by the Senate as the first Latina on the U.S. Supreme Court.

Yet, I can’t shake this nagging feeling that while we will win this battle, we’re losing the war.

Issue No. 1 in her Senate confirmation hearings, which are ongoing as I write this, is whether Sotomayor would let her Hispanic ethnicity or gender shape her rulings. She has spent the better part of two days trying to assure ranting Republican senators that it would not.

Which is not only patently false, it confirms for me that Republicans have won the broader debate in this country: Progressive jurists quake in their boots at the mere thought of being labelled “activists” who “legislate from the bench” by letting who they are and how they feel about it impact their decisions.

(As if conservative jurists don’t do this all the time.)

The front page of the Akron Beacon Journal this morning includes an AP article headlined: ‘Sotomayor denies racial bias’:

An attempted play on words ”fell flat” in a speech in 2001, Sotomayor told Sen. Jeff Sessions, R-Ala., referring to remarks in which she suggested that a ”wise Latina woman” would usually reach a better conclusion than a white male.

”It was bad because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge,” Sotomayor said.

The New York Times plays it the same way:

”My words failed, they didn’t work,” she told Senator Cornyn, who zeroed in what he said were several instances in which she asserted that “a wise Latina woman” might reach a different, even a better, decision than a white male.

All this fuss is about a 2001 Berkeley lecture on law and cultural diversity, in which Sotomayor said:

“Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. … I am also not so sure that I agree with the statement. First … there can never be a universal definition of ‘wise.’ Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

With a richness of her experiences. That’s the part media accounts leave out. And yet, that was Sotomayor’s point. Are Republicans suggesting that a white male who has lived on a remote mountaintop studying U.S. law all his life — never once venturing down into the messy and confounding and beautiful streets of America, but with a “perfect” understanding of the law — would somehow be their ideal candidate?

Sotomayor’s comment is not only utterly refreshing, it highlights an unassailable truth. If our society was perfect, we might not need judges with varied backgrounds and experiences. If we had not had slavery and Jim Crow, maybe there would have been no need for Thurgood Marshall. If women had always had the right to vote, and earned equal pay for equal work, perhaps we could have lived without O’Connor and Ruth Bader Ginsberg.  If gay Americans had the right to get married and serve openly as U.S. soldiers, the Court might not need a gay judge.

But they don’t, and we do, and hopefully one day we’ll have one.

By forcing Sotomayer to contort her legal self into a barely recognizable shadow of her ethnic self, minority Republicans remain on offense, in control the broader message, which will continue to have ramifications for a long time to come.

In my ideal America, Judge Sotomayor would look those Republican senators in the eye and say: Absolutely, my experiences as a Latina woman, to say nothing of my experiences growing up in a South Bronx housing project, will affect how I rule on the nation’s top court, just as Chief Justice John Roberts’ experience at Roman Catholic grade school and boarding school, and Justice Clarence Thomas’ experience as a beneficiary of affirmative action, surely affect their decisions.

That’s how it should be. It’s a big part of the reason why, over time, our vast, relatively young system of law bends slowly, achingly toward justice.

Thank you, and God bless America.

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4 Responses to “We’ve Lost the War”

  1. bill says:

    I think that she actually said it multiple times, based on the testimony that I heard today.

    My take is that she believes that a wise Latina woman (note both adjectives) will *sometimes* come to a better decision than a white man. I think that for her ‘better’ means ‘more empathic, more sensitive, more human’ than a strict reading of the law would suggest or direct. I can’t say that she is wrong in wanting this, though if it is a primary part of her judicial philosophy, it would scare me, just as the same attitude on the part of a conservative SCOTUS nominee would scare me. I do not believe that she believes the WLW will *always* or even *usually* come to a better decision, just ‘sometimes’.

    It does bother me that she is so obviously trying to hide and obfuscate this attitude. I think I understand why, but, applying my personal rule, it would irritate the heck out of me if a conservative was doing it, so it irritates me that she is doing it. She’s not being honest. In that regard, I liked Spector’s comments regarding promises today as compared to performance tomorrow.

  2. Neurotic Dem says:

    Bill,
    Great comment.
    I heard a lot of conservative senators say today that her judicial philosophy actually is in the mainstream, which is a major breakthrough, considering where things began. It sounds like she will garner at least a few conservative votes.
    She clearly, though, is trying to obfuscate — just as Roberts and Scalia and Thomas did before her. I honestly can’t blame her for the strategy — it works, afterall. I’m sure she was advised by Dems on the committee to steer clear of any and all controversy, and this is the result.
    My broader concern is that it seems to be taken as fact that now that a judge’s perspective and personal feelings should not enter into decision making. I guess what I’m saying is that’s always happening — a judge’s interpretation of the law, and even of the constitution, is based on who he or she is. That’s why we still need judges.
    Note the first part of Sotomayor’s quote above. ‘There can never be a universal definition of wise.’ That’s because we are all products of different upbringings, environments, etc. WLW or otherwise. That gets to my point.
    -ND

  3. Barbara says:

    Great post, Josh. I have been thinking of something similar but couldn’t put it into words. Of course she thinks her decisions are better than anyone elses. We all think that way. I am constantly reminded of a comment Nathan made at the dinner table one night. I am paraphrasing but what he said went something like this: “I hate it when people say ‘I may be wrong but’, if they think it’s wrong why do they say it?” Conversely, most of us say and do what we think is right. I absolutely agree, if there was only one right opinion, we wouldn’t need a panel of judges, we would only need one. I too wish she hadn’t backed down.

  4. Neurotic Dem says:

    Thanks, Barb. Appreciate that. And love Nate’s comment.
    Frank Rich today put it so well in his column. http://tinyurl.com/mvm9bq . He argued that the hearing was “Alice in Wonderland,” turning reality on its head, because in fact if you look at the records of the white Republican Senators judging Sotomayor — THEY have the explaining to do. Coburn, for instance, once blased the “full-frontal nudity and irresponsible sexual activity” of Schindler’s List. In 2004 he said that the gay agenda is “the greatest threat to our freedom that we face today.” Sessions is best know for his work as the Alabama attorney general unsuccessfully prosecuting civil rights activists. The beat goes on.
    Rich’s conclusion was stinging, a good-old fashioned journalistic smack down:
    “It’s the American way that we judge people as individuals, not as groups. And by that standard we can say unequivocally that this particular wise Latina, with the richness of her experiences, would far more often than not reach a better conclusion than the individual white males she faced in that Senate hearing room.”
    A-freakin’-men.

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