Judge Sonia Nominated,
Gets Widespread Support,
Not Likely to Be Borked.
Two events have just taken place which emphasize the
importance of ethnicity in American politics.
The first is the widely acclaimed appointment of Judge Sonia
Sotomayor to the United States Supreme Court. As a Latina,
she brings ethnic and gender diversity. Her varied background as
prosecutor, private practitioner, district judge and circuit judge is unmatched
by any sitting justice. Her personal story, rising from the projects to Princeton and
Yale Law School, illustrates her intelligence and
dedication. It is a triumphal story of the way, in the minds of many, America should work. Raised by a single parent (her father died when she was nine), educated in Catholic schools, studying on her own to make up the gap between Cardinal Spellman High School and
Princeton University,
overcoming the handicap of juvenile diabetes, her life so far has been a storybook tale of great success through hard work. Ad astra per aspera could well be her motto.
And yet, she was partly chosen for her Latino lineage. This
is not unreasonable, as long as the candidate is meritorious. The other
women in contention were brilliant legal scholars, with numerous publications
to their credit, or successful administrators of important legal institutions,
like
Harvard Law School
Judge Sotomayor’s opinions during her eleven years on the bench are workmanlike but occasionally pedestrian. Her language does not soar, as Cardozo’s did. She appears to decide cases on relatively narrow bases rather than broad principles. Actually, there is nothing wrong with that. It does differ, however, with her letting the cat out of the bag in her 2001 and 2005 statements.
2001: “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.”
Can you imagine what would follow if Judge Scalia or Judge
Alito had made a similar statement, extolling the judgment of white
males? But it’s never the same, is it? Explanation: She said it at
a diversity conference in
Berkeley, California, a town noted for the variety of
viewpoints of the Golden Bears professors. Somebody paid to fly her across the country to Berkeley, unless she was sitting with the Ninth Circuit.
2005: “All of the legal defense funds out there, they are
looking for people with [Circuit] Court of Appeals experience because the Court
of Appeals is where policy is made.” In the same statement, shortly
afterward, she said: “And I know this is on tape and I should never say that
because we don’t make law. I know. OK, I know. I’m not
promoting it, I’m not advocating it”
On reading this statement, we find it reasonable. The
Courts of Appeal interpret Congressional statutes, and deal with issues that
are ambiguous or overlooked in statutory law. When there are different
results in different circuits, the Supreme Court may accept a case and issue a
definitive ruling. But very few cases get to the Supreme Court, so in
many cases the Court of Appeals (formerly known as the Circuit Court) does
make, or define, the law. You are just not supposed to say so, because
the Constitution provides that Congress makes the law. But deciding what
the words in the law mean is an important part of process, and that is the task
of the courts. Perhaps if Congress got it straight all the time there
would be fewer lawsuits, and they would be easier to resolve.
Judge Sotomayor’s words may have been injudicious, but she
spoke the truth, and that should not be held against her. She recognized
the sensitivity of the matter and the risk of accusations of arrogation of
authority; so she immediately modified her language, which is to her
credit. She is, after all, a cautious jurist. To us, the incident
makes her appear more human and more honest. With the scheduled hearings
in mid-July, the opposition will have about six weeks to dig up dirt on
her. This is part of the great American process that takes place when you
are nominated for high public office. (BTW, former Police Commissioner
Bernard Kerik has just been indicted for, of all things, lying
to the White House while he was being vetted for Secretary of Homeland
Security. There is something ironic about that.)
Now her nomination is before the Senate Judiciary Committee,
and the question is how much of a fuss the Republicans will make over
her. Latinos are overwhelmingly pleased at President Obama’s appointment
of her. How many people does the GOP want to drive out of the tent?
We shall see.
There may be brighter legal stars in the firmament, even
narrowing the field by gender. But there are no others who would bring
such pride to thirty million Americans. And none who could match the life
experience and personal accomplishment of this summa cum laude Princeton graduate. The question is whether she will judge cases individually on
their merits, or will she turn out to be a closet revolutionary who will try to
spin the Court in a radical deconstructionist. On the basis of her life
experience and judicial record, we think that outcome is highly unlikely.
We feel safe with Aunt Sonia, and we hope we are right.
A serious view on that subject has been expressed by Walter
Olson in a column, OBAMA’S WISE LATINA, which appeared in Forbes
magazine.
For historical purposes only, we call your attention to this
description of a jurist on the Fifth Circuit Court of Appeals who had been
nominated for the Supreme Court by President Nixon in 1970. The nominee,
Judge G. Harrold Carswell of Florida,
was memorably limned in a speech on the Senate floor by SenatorRoman L.
Hruska, Republican of Nevada, who said:
“Even if he were mediocre, there are a lot of mediocre judges
and people and lawyers. They’re entitled to a little representation,
aren’t they, and a little chance? We can’t have all Brandeises,
Frankfurters and Cardozos.”
The second topic we would like to discuss is CongressmanAnthony
Weiner’s withdrawal from the mayoral race and the unstated effect of
ethnicity on his decision, but we will work on that tomorrow. In the
meantime we invite your thoughts on the matter, and the Sotomayor nomination.
Henry J. Stern writes as StarQuest. Direct email to him at StarQuest@nycivic.org.
Peruse Mr. Stern’s writing at New York Civic.
