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Sonia Sotomayor: Democracy’s nominee

Post by Patrick O'Callahan on May 28, 2009 at 8:02 pm with 2 Comments »
May 28, 2009 8:02 pm

This editorial will appear in tomorrow’s print edition:


The Supreme Court may be the least democratic part of the U.S. government, but it is still only one step removed from democracy.


Because the Constitution vests the power to nominate justices in the executive, members of the court are chosen by multiple presidents over a period of decades. The result is a court that – very roughly – reflects the temper of the voters who pick occupants for the White House.


The current court is a case in point. America’s political culture has often been often described as "center right" (though the election of Barack Obama suggests a recent leftward shift). The makeup of the high court is in fact center right: four liberals, four conservatives, and one moderate conservative – Anthony Kennedy – who often wields the decisive vote.


This is the system created by the founders; by and large, it has prevented the court from becoming too detached from the citizenry.


That argues, normally, for the Senate to confirm the president’s choice – including the newly nominated Sonia Sotomayor.



Not all nominees deserve this deference. In some cases, they just don’t have what it takes. Such was the case with Harriet Miers, a nominee of George W. Bush who’d never served as a judge and had not earned the legal distinction one expects in a Supreme Court justice.


After that nomination flopped, Bush came back and offered Samuel Alito, who was clearly qualified. He was confirmed, as was the obviously qualified John Roberts, now serving as chief justice.


Unless some time bomb turns up in Sotomayor’s background, she too will deserve confirmation. She possesses the caliber of intellect and – as a long-serving federal judge – the range of experience the high court demands.


This is a political as well as a legal choice. Obama was courting the Hispanic and female vote by nominating a Latina. His critics are accusing him of trying to taint justice with identity politics.


Sotomayor herself once made an unfortunate comment that suggested a Hispanic woman makes for a better judge than a "white male." In reality, it all depends on who the Latina is and who the white male is. Or the black male. Or the white woman.


But the Constitution allows politics – the democratic ferment – to shape nomination decisions.


That argument aside, Sotomayor remains an eminently qualified jurist with ample scholarship and expertise for the job. George W. Bush never would have nominated her, just as Obama never would have nominated Roberts. She’ll almost certainly wind up serving alongside Roberts – on a court that continues to adjust to the nation’s ongoing evolution.

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Leave a comment Comments → 2
  1. coovertc says:

    Please don’t just print right wing talking points. If you read that remark in context, you see that she actually was just saying that life experiences shape everyones’ decisions, but that she must strive to be objective as a judge.

  2. Patrick O'Callahan says:

    Let’s let Judge Sotomayor speak for herself. Here is the context of her remark during a speech she gave at Berkeley in 2001, as published in Berkeley’s La Raza Law Journal. Paragraph breaks are mine:

    Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

    Justice (Sandra Day) 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 not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement.

    First, as Professor Martha Minnow has noted, 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.

    Let us not forget that wise men like Oliver Wendell Holmes and Justice (Benjamin) Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.

    I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

    However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

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