Trying to understand what kind of justice a Supreme Court nominee will be is a bit like solving a puzzle. You have to decide which pieces (which legal decisions, which law review articles, which public speeches) are the most important to the picture and which are merely outliers. In the case of Sonia Sotomayor, a lot of critics are focusing on a speech she gave earlier this decade which was published in the Berkeley La Raza Law Journal in 2002.
Sotomayor said: “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,” she declared. “I am . . . not so sure that I agree with the statement. First, . . . 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.”
An editorial by the Wall Street Journal provides us with the going conservative interpretation of these words:
[E]ven more than her opinions, these words are a guide to Ms. Sotomayor’s likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.
But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor’s belief is that a “Latina woman” is by definition a superior judge to a “white male” because she has had more “richness” in her struggle. The danger inherent in this judicial view is that the law isn’t what the Constitution says but whatever the judge in the “richness” of her experience comes to believe it should be.
The worry is that Sotomayor doesnâ€™t believe in immutable law but believes the Constitution and precedent should be elastic, allowing personal experience to take a place beside legal judgment in determining how our laws should be applied.
Thereâ€™s some reason to think thatâ€™s exactly the kind of judge Obama wants. Yesterday he said:
“Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers,” Mr. Obama said yesterday in introducing Ms. Sotomayor. “It is experience that can give a person a common touch of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of Justice we need on the Supreme Court.”
Is he saying overcoming hardship is more important (or even just as important) as a rigorous intellect? As a consistent, reasonable judicial philosophy? Can you imagine what those on the left would have said if President Bush had made Samuel Alitoâ€™s religion an explicit selling point of his nomination? Obviously, all judges are influenced by their cultural beliefs and personal experiences, but to believe thereâ€™s something innately superior in a specific blend of hardship and ethnicity seems misguided, if not downright arrogant.
However, all Iâ€™ve got to work with in this post is one quote from one Sotomayor speech and a typically Obamaian celebration of diversity. Two pieces to a much larger puzzle. The job of the Senate, if they so choose to perform their job, is to determine the extent to which Sotomayor believes she can manipulate the law so it conforms to her personal understandings of right and wrong. If sheâ€™s smart, sheâ€™ll take a page from Antonin Scalia who denies his Catholicism affects his judgments, despite all evidence to the contrary. Then again, maybe Sotomayor will do less of the usual obfuscating and actually defend her experience as being a vital part of her ability to make good judicial rulings. That would make for some very interesting confirmation hearings.