Posts Tagged ‘O’Connor’

We’ve Lost the War

Wednesday, July 15th, 2009

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.