Judge Sonia Nominated,
Gets Widespread Support,
Not Likely to Be Borked.
By Henry J. Stern
May 27, 2009
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 Senator Roman 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 Congressman Anthony 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.
StarQuest
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