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The Ridiculous Sotomayor Debate
Terrell E. Arnold
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
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