- Thanks to a hard right Republican effort to be totally
unhelpful, the debate about President Obama's nomination of Sonia Sotomayor
as Supreme Court Justice has probed new depth even for Washington. It is
easy in this debate, now racking up nearly a million references on the
Internet, to forget what Judge Sotomayor is accused of. In 2001, nearly
a decade ago, she said: "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". That, in
truth, is a very matter of fact statement about the impact of human experience
on human judgment. Most of us have the wit to pray that indeed such adjustments
in perception and reaction do occur, because, if they did not, we would
not have laws, judges, or lawyers whose logic, statements or decisions
even remotely relate to the human condition.
- Constitutional law in the United States has long been
the special purview of white males whose training and experience reflected
the niceties of elite education and environment. Even the first drafts
of it were the products of an elite group, some of whom owned thousands
of acres of real estate and kept slaves and womanized. Mostly they rose
above those habits and conditions to draft a system of laws that has served
us well for two centuries.
- Serving us well does not mean always or evenly. In truth,
for most of our history the constitution has been white law as applied
by whites to whoever appeared at the bench, regardless of color or ethnicity.
But thanks to its English history, especially the Magna Carta, some principles
of equity came in the package. The law was designed by humans, on the basis
of human experience, and it had to be applied by humans to other humans.
The framers went well beyond that point in creating a Supreme Court of
nine judges. That was surely judicial safety in numbers, but it also assured
that a range of experience and perspective would always inhabit the bench.
The nine together were indeed likely to know that mitigating circumstances
might intervene to alter both the nature of human action and its consequences.
They would thus render judgments based on some personal combination of
law, equity and, indeed, preference.
- A realistic view of the Supreme Court is that a variety
of issues will come before it about which various American constituencies
seek a biased judgment. Abortion rights are such an issue. However, the
broader demonstration of anticipated bias is the normal selection of appointees
to the bench. A conservative president is expected to appoint conservative
judges and vice versa. Such appointment decisions are not based on strict
construction of laws but on hoped for favorable interpretations of law.
We, perhaps too politely, do not call that bias.
- The first Supreme Court Justice who was not a white male
was African American Thurgood Marshall. He was appointed in 1967 by Lyndon
Johnson. The all male pattern was broken when Ronald Reagan appointed Sandra
Day O'Connor to the bench in 1981. When confirmed, Sonia Sotomayor would
be the third woman to serve in the Supreme Court.
- Every Supreme Court appointment invites a Washington
debate which typically has little to do with the future justice's performance.
Marshall, who at one stage was Chief Counsel to the NAACP, earned his legal
reputation, for example, by defending the academic rights of an African
American who had been refused admission to the University of Maryland Law
School. On the bench his forte was constitutional protection of individual
liberties; in some eyes, that made him a liberal.
- Marshall's successor, Clarence Thomas, had little experience
on the bench, and some said at the time of his appointment that his principle
virtue was reliable conservatism; that means legal conservatism, not personal.
- Sandra Day O'Connor, nominally a conservative, was opposed
by critics who said she was pro-abortion. However, one expert on the court
said that O'Connor "seemed to look at each case with an open mind."
- Ruth Bader Ginsberg, appointed to the court by Clinton
in 1993 is by repute a liberal. But her chief compatriot on the bench appears
to be Reagan-appointed Antonin Scalia.
- Sotomayor is controversial to some merely because she
represents a significant ethnic/cultural deepening of the diversity of
the court. Being a woman is no longer an argument. However, some critics
seem to think that her being Hispanic challenges the American-ness of the
court. Those people really need to look at the present structure of American
society. Neither of the women previously appointed to the court was challenged
for having female perspectives on the issues. Yet Sotomayor's hard right
critics are trying to scuttle her appointment by arguing that she would
feminize (Latina feminize at that) the proceedings. There is more than
a little Anglo male ego/hubris in the charge.
- Latest readings are that such diversions will have little
effect on Sotomayor's confirmation. Although, it is reported that due to
Ruth Bader Ginsberg's fight with pancreatic cancer, she may soon leave
the court. That could leave Sotomayor as a lone female on the bench. Obama
could thus face another Supreme Court challenge: Appoint a second woman,
or leave Sotomayor to cope with eight old men. It is doubtful she would
relish that, but judging from her handling of the nomination process there
seems little doubt she would manage it.
- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose overseas service included tours in Egypt, India,
Sri Lanka, the Philippines, and Brazil. He studied Constitutional Law at
Union University's Albany Law School. His immediate pre-retirement positions
were as Chairman of the Department of International Studies of the National
War College and as Deputy Director of the State Office of Counter Terrorism
and Emergency Planning. He will welcome comment a