Thoughts on Judge Sotomayor's nomination
Since the President announced his pick for the Supreme Court, reactions have pretty much run the entire spectrum of possibility. On one side, we have Sen. Chuck Schumer calling the pick “brilliant,” and on the other end we have Rush Limbaugh and Newt Gingrich openly calling Judge Sotomayor a “racist.”
Those who've followed my ideological development over the years should be unsurprised to learn that my own reaction falls somewhere in the middle. While, in the end sum, Judge Sotomayor is not who I would have picked, I ultimately think she's a good choice that will end up being a net benefit for everyone involved.
“What?” you say (pun intended). “How can the pick be a boon for both the right and the left?”
Certainly, Judge Sotomayor is not a benefit to all sides in the same ways. But I believe people of all political stripes, if they really think about it reasonably without partisanship, will see the wisdom of having Judge Sotomayor replace Justice Souter.
1. The historical significance of the nomination
Let's be honest. If Judge Sotomayor were a balding white guy, she wouldn't have been picked. Look at the media memes; it's clear that “first Latina Justice” is front and center out of all the things said about this nominee. And yes, there's some taste of identity politics in here - why pick her over someone perhaps more qualified?
I realize this will probably enrage a few of my more conservative friends, but I'm going to go out on a limb here and assert a simple truth: It's her ethnic and gender identity, in part, that qualify her for the position.
There are hundreds, if not thousands of minds in the United States today who would make excellent justices on the Supreme Court. There are a few, to be fair, like John Roberts, who are of such genius that they're already almost considered to be a tenth Justice, but such minds are rare and only come around once in a generation or so. Among the rest, then, it's the “extras” that distinguish one highly capable legal mind from another, the specifics of one's background - and yes, that includes considerations of race and gender. Even such a shining star as John Roberts had certain attributes (“I'm just a humble little country boy from Kansas”) that gave him political appeal and helped him weather the minefield of the confirmation process.
Like it or not, Supreme Court nominations are not - and have not been, perhaps ever - entirely about legal acumen. They're picked and confirmed by the political arms of the government, and that makes the choice of nominee ultimately political, with all the attendant foibles. It's an imperfect system, perhaps, but it's reality.
I'm generally not a fan of identity politics. But for all that, it's uplifting to think that there's finally someone from the coming American majority on the Supreme Court. And again, for all the ugly reality of it, diversity on the Court does matter. The infamously racist cases Dred Scott and Plessey v. Ferguson both came down in an era where it was supposed to be all about the law and strict construction and the other buzzwords of the right - but I'm sure even the most hardcore conservative could not say with a straight face that those results would have come out the same if the entire Court had been black instead of white. So - and again, I make no pretensions about the ugliness and unpalatability of the statement - diversity, of viewpoint and of background, does indeed matter, if only because it helps moderate the oligarchy of singlemindedness.
Ultimately, then, I think the historicity of the pick is win-win, although with better political consequences for the left, obviously. And the American people are watching. This is why with every bone in my body I pray that the right will come down from calling her a racist and all that crap. The GOP, in particular, needs to watch out for those kinds of comments. Latinos are the key constituency the GOP needs in order to have any sort of viable political future, and a reactionary response to the first nomination of a Latino to the Supreme Court is going to seriously alienate that key constituency. If the GOP does not tread on eggshells in the conformation process, it will doom itself to irrelevancy for years to come.
The appropriate reaction of the political opposition is not partisan hatemongering, but celebration of the nomination's historical significance along with a very respectful, yet vigorous debate on the nominee's record. The key word here is fairness. People can tell the difference between partisan talking points and a friendly and respectfully voiced disagreement. Judge Sotomayor's ultimate confirmation is a virtual certainty, so the GOP and the right wing should use her nomination as an opportunity to peaceably yet firmly articulate their own views on the rule of law, without demeaning those of hers that she holds in good faith.
2. The pragmatic significance of the nomination
Another reason to breathe relatively easy is that the nomination is no radical departure from the status quo. Judge Sotomayor will replace Justice Souter, who generally votes on the left wing of the Court. As such, the ideological composition of the Court is not likely to shift significantly in any direction.
To be equally pragmatic but a bit more morbid, Supreme Court justices serve for life or until their resignation. Justice Souter retired at 69, apparently in the peak of health; he lives a highly ascetic lifestyle and appears to be in excellent physical condition. Judge Sotomayor is 54, but (and I mean no disrespect) overweight, as well as a lifetime diabetic. Both of those conditions are demonstrated to have reasonably significant impact on life expectancy. As such, ghastly though it is to say it, Souter's seat is not likely to be occupied for too many years longer than those in which he himself would otherwise have been sitting in it.
To be again uncomfortably pragmatic, a lot of decisions on the Court come down to Justice Kennedy's vote. As such, the Court is often engaged in a battle for the soul of Justice Kennedy, as it were. Justice Kennedy has voted fairly frequently with the right wing of the Court since Roberts was appointed as Chief Justice; this is perhaps due to the Chief's legendary persuasive abilities. Judge Sotomayor, for all her sterling legal qualities, is generally rated as more abrasive and decisive than persuasive and intellectual - certainly more so than the mild-mannered Justice Souter, and moreso than more scholarly picks such as Diane Wood or Elena Kagan. Conservatives anxious at Judge Sotomayor's nomination should look with interest on the possibility that Justice Kennedy will more freely be in play in future decisions.
Finally, there are also indications that Judge Sotomayor is a bit more judicially independent than Justice Souter. As a former prosecutor, her opinions tend to display understanding of, and deference to, law enforcement (more popularly, if annoyingly, called a “tough on crime” mentality). Her decisions on abortion are, at best, highly ambiguous, leaving open the possibility that her Catholic faith and Latina background have, at least, given her a more nuanced view on abortion law. She also comes from the historically moderate Second Circuit, and her opinions are hard to stuff into any single ideological niche.
As such, liberals will get probably an excellent replacement for the outgoing Justice Souter. Conservatives, under the circumstances, have everything to gain and nothing to lose by Judge Sotomayor's nomination, while on the flip side they have everything to lose and nothing to gain by rabid and unreasoned opposition. In the end, then, Sotomayor again comes out as a balanced pick, no matter where one sits on the political grid.
3. The significance of the nominee's personal views
With the left's proclivity for social engineering, and the right's proclivity for bright-line ideological idealism, pragmatism tends to end up being a moderate value, a balance between the two. Strange though it may seem, especially to my right-of-center acquaintances, I believe that Judge Sotomayor's most controversial statements, when taken in context, actually show her to be more intellectually a moderate than anything else.
Consider her statement that the “Court of Appeals is where policy is made.” This instantly incited the umbrage of everyone in the nation who believes the judiciary should not make itself a de facto political branch of government, and perhaps rightly so. But, c'mon, fellas. Ideological fantasies about utopia aside, is there anyone in the room who's going to seriously argue that her statement is untrue? The appellate courts (and particularly the Supreme Court) do indeed set policy in a lot of important ways, and they have for a long time, even before “liberal” jurisprudence was more than a glimmer in the distant stars
And even if your jurisprudence is conservative, there's no doubt that the appellate courts interpret and apply the law, and yes, that does involve policy judgments more often than not (especially when it comes to the common law). Judge Sotomayor, in clarifying the above remark, says exactly that, discussing the role of the appellate courts in considering the ramifications of applying a particular legal interpretation. As such, I take her statement not as some kind of radical liberal subversive confession, but rather as a candid denial of the common legal fiction that courts should have no role in the development of the law. She's not saying courts should make law out of whole cloth; she's merely saying courts have an important role in considering how to interpret and apply the law. And that's a realistic and, dare I say, pragmatic outlook.
Judge Sotomayor's statement that “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” is a tougher row to hoe, and I'd be lying if I said the phrasing and mentality didn't lean at least a little toward troublingly leftist identity politics. However, on consideration of her fuller context, I believe she was attempting - if inadroitly - to address another pragmatic reality: there is no such thing as true objectivity, and therefore background matters.
Again, there is no question that several historically bad decisions might have turned out with dramatic differences were the Court of a substantially different gender or ideological composition. In such cases, couldn't we honestly say that a wise Latina woman, with the richness of her experiences, would have reached a better conclusion than a white male who hadn't lived that life? In the fuller context of her remarks (available here), Judge Sotomayor points out that, while it is certainly possible to come to some level of understanding outside of our experiences, our experiences will always color our understanding of issues. While perhaps not ideal - after all, who wouldn't want a really truly impartial judge? - her statement is bluntly realistic, and again pragmatic. That's why diversity matters. Certainly, it's possible and laudable to uplift one's consciousness and do the right thing - see Brown v. Board of Education, decided by nine white old men - but for the inevitable times when we close ourselves off to other viewpoints, having a multitude of experiences on the bench is, from my perspective and Judge Sotomayor's, a vital check and balance to continue the administration of justice.
So in sum, even Judge Sotomayor's most “radical” statements, upon closer examination, end up reflecting a fundamentally moderate and pragmatic view of the world. If even her most inadroit and objectionable statements speak to the pragmatism of her attitude, then I certainly have no complaints about her temperament.
4. Conclusion
While perhaps not ideal from any point of view, Judge Sotomayor is a deserving nominee from every angle. Whatever one's political stripes, there are compelling reasons to support her. She adds much-needed diversity to the Court, she does not dramatically shift the Court's ideological landscape, and she herself, while (naturally) leaning leftward, appears to be a thoughtful and fair-minded pragmatist. I welcome her nomination, and look forward to her service.
Those who've followed my ideological development over the years should be unsurprised to learn that my own reaction falls somewhere in the middle. While, in the end sum, Judge Sotomayor is not who I would have picked, I ultimately think she's a good choice that will end up being a net benefit for everyone involved.
“What?” you say (pun intended). “How can the pick be a boon for both the right and the left?”
Certainly, Judge Sotomayor is not a benefit to all sides in the same ways. But I believe people of all political stripes, if they really think about it reasonably without partisanship, will see the wisdom of having Judge Sotomayor replace Justice Souter.
1. The historical significance of the nomination
Let's be honest. If Judge Sotomayor were a balding white guy, she wouldn't have been picked. Look at the media memes; it's clear that “first Latina Justice” is front and center out of all the things said about this nominee. And yes, there's some taste of identity politics in here - why pick her over someone perhaps more qualified?
I realize this will probably enrage a few of my more conservative friends, but I'm going to go out on a limb here and assert a simple truth: It's her ethnic and gender identity, in part, that qualify her for the position.
There are hundreds, if not thousands of minds in the United States today who would make excellent justices on the Supreme Court. There are a few, to be fair, like John Roberts, who are of such genius that they're already almost considered to be a tenth Justice, but such minds are rare and only come around once in a generation or so. Among the rest, then, it's the “extras” that distinguish one highly capable legal mind from another, the specifics of one's background - and yes, that includes considerations of race and gender. Even such a shining star as John Roberts had certain attributes (“I'm just a humble little country boy from Kansas”) that gave him political appeal and helped him weather the minefield of the confirmation process.
Like it or not, Supreme Court nominations are not - and have not been, perhaps ever - entirely about legal acumen. They're picked and confirmed by the political arms of the government, and that makes the choice of nominee ultimately political, with all the attendant foibles. It's an imperfect system, perhaps, but it's reality.
I'm generally not a fan of identity politics. But for all that, it's uplifting to think that there's finally someone from the coming American majority on the Supreme Court. And again, for all the ugly reality of it, diversity on the Court does matter. The infamously racist cases Dred Scott and Plessey v. Ferguson both came down in an era where it was supposed to be all about the law and strict construction and the other buzzwords of the right - but I'm sure even the most hardcore conservative could not say with a straight face that those results would have come out the same if the entire Court had been black instead of white. So - and again, I make no pretensions about the ugliness and unpalatability of the statement - diversity, of viewpoint and of background, does indeed matter, if only because it helps moderate the oligarchy of singlemindedness.
Ultimately, then, I think the historicity of the pick is win-win, although with better political consequences for the left, obviously. And the American people are watching. This is why with every bone in my body I pray that the right will come down from calling her a racist and all that crap. The GOP, in particular, needs to watch out for those kinds of comments. Latinos are the key constituency the GOP needs in order to have any sort of viable political future, and a reactionary response to the first nomination of a Latino to the Supreme Court is going to seriously alienate that key constituency. If the GOP does not tread on eggshells in the conformation process, it will doom itself to irrelevancy for years to come.
The appropriate reaction of the political opposition is not partisan hatemongering, but celebration of the nomination's historical significance along with a very respectful, yet vigorous debate on the nominee's record. The key word here is fairness. People can tell the difference between partisan talking points and a friendly and respectfully voiced disagreement. Judge Sotomayor's ultimate confirmation is a virtual certainty, so the GOP and the right wing should use her nomination as an opportunity to peaceably yet firmly articulate their own views on the rule of law, without demeaning those of hers that she holds in good faith.
2. The pragmatic significance of the nomination
Another reason to breathe relatively easy is that the nomination is no radical departure from the status quo. Judge Sotomayor will replace Justice Souter, who generally votes on the left wing of the Court. As such, the ideological composition of the Court is not likely to shift significantly in any direction.
To be equally pragmatic but a bit more morbid, Supreme Court justices serve for life or until their resignation. Justice Souter retired at 69, apparently in the peak of health; he lives a highly ascetic lifestyle and appears to be in excellent physical condition. Judge Sotomayor is 54, but (and I mean no disrespect) overweight, as well as a lifetime diabetic. Both of those conditions are demonstrated to have reasonably significant impact on life expectancy. As such, ghastly though it is to say it, Souter's seat is not likely to be occupied for too many years longer than those in which he himself would otherwise have been sitting in it.
To be again uncomfortably pragmatic, a lot of decisions on the Court come down to Justice Kennedy's vote. As such, the Court is often engaged in a battle for the soul of Justice Kennedy, as it were. Justice Kennedy has voted fairly frequently with the right wing of the Court since Roberts was appointed as Chief Justice; this is perhaps due to the Chief's legendary persuasive abilities. Judge Sotomayor, for all her sterling legal qualities, is generally rated as more abrasive and decisive than persuasive and intellectual - certainly more so than the mild-mannered Justice Souter, and moreso than more scholarly picks such as Diane Wood or Elena Kagan. Conservatives anxious at Judge Sotomayor's nomination should look with interest on the possibility that Justice Kennedy will more freely be in play in future decisions.
Finally, there are also indications that Judge Sotomayor is a bit more judicially independent than Justice Souter. As a former prosecutor, her opinions tend to display understanding of, and deference to, law enforcement (more popularly, if annoyingly, called a “tough on crime” mentality). Her decisions on abortion are, at best, highly ambiguous, leaving open the possibility that her Catholic faith and Latina background have, at least, given her a more nuanced view on abortion law. She also comes from the historically moderate Second Circuit, and her opinions are hard to stuff into any single ideological niche.
As such, liberals will get probably an excellent replacement for the outgoing Justice Souter. Conservatives, under the circumstances, have everything to gain and nothing to lose by Judge Sotomayor's nomination, while on the flip side they have everything to lose and nothing to gain by rabid and unreasoned opposition. In the end, then, Sotomayor again comes out as a balanced pick, no matter where one sits on the political grid.
3. The significance of the nominee's personal views
With the left's proclivity for social engineering, and the right's proclivity for bright-line ideological idealism, pragmatism tends to end up being a moderate value, a balance between the two. Strange though it may seem, especially to my right-of-center acquaintances, I believe that Judge Sotomayor's most controversial statements, when taken in context, actually show her to be more intellectually a moderate than anything else.
Consider her statement that the “Court of Appeals is where policy is made.” This instantly incited the umbrage of everyone in the nation who believes the judiciary should not make itself a de facto political branch of government, and perhaps rightly so. But, c'mon, fellas. Ideological fantasies about utopia aside, is there anyone in the room who's going to seriously argue that her statement is untrue? The appellate courts (and particularly the Supreme Court) do indeed set policy in a lot of important ways, and they have for a long time, even before “liberal” jurisprudence was more than a glimmer in the distant stars
And even if your jurisprudence is conservative, there's no doubt that the appellate courts interpret and apply the law, and yes, that does involve policy judgments more often than not (especially when it comes to the common law). Judge Sotomayor, in clarifying the above remark, says exactly that, discussing the role of the appellate courts in considering the ramifications of applying a particular legal interpretation. As such, I take her statement not as some kind of radical liberal subversive confession, but rather as a candid denial of the common legal fiction that courts should have no role in the development of the law. She's not saying courts should make law out of whole cloth; she's merely saying courts have an important role in considering how to interpret and apply the law. And that's a realistic and, dare I say, pragmatic outlook.
Judge Sotomayor's statement that “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” is a tougher row to hoe, and I'd be lying if I said the phrasing and mentality didn't lean at least a little toward troublingly leftist identity politics. However, on consideration of her fuller context, I believe she was attempting - if inadroitly - to address another pragmatic reality: there is no such thing as true objectivity, and therefore background matters.
Again, there is no question that several historically bad decisions might have turned out with dramatic differences were the Court of a substantially different gender or ideological composition. In such cases, couldn't we honestly say that a wise Latina woman, with the richness of her experiences, would have reached a better conclusion than a white male who hadn't lived that life? In the fuller context of her remarks (available here), Judge Sotomayor points out that, while it is certainly possible to come to some level of understanding outside of our experiences, our experiences will always color our understanding of issues. While perhaps not ideal - after all, who wouldn't want a really truly impartial judge? - her statement is bluntly realistic, and again pragmatic. That's why diversity matters. Certainly, it's possible and laudable to uplift one's consciousness and do the right thing - see Brown v. Board of Education, decided by nine white old men - but for the inevitable times when we close ourselves off to other viewpoints, having a multitude of experiences on the bench is, from my perspective and Judge Sotomayor's, a vital check and balance to continue the administration of justice.
So in sum, even Judge Sotomayor's most “radical” statements, upon closer examination, end up reflecting a fundamentally moderate and pragmatic view of the world. If even her most inadroit and objectionable statements speak to the pragmatism of her attitude, then I certainly have no complaints about her temperament.
4. Conclusion
While perhaps not ideal from any point of view, Judge Sotomayor is a deserving nominee from every angle. Whatever one's political stripes, there are compelling reasons to support her. She adds much-needed diversity to the Court, she does not dramatically shift the Court's ideological landscape, and she herself, while (naturally) leaning leftward, appears to be a thoughtful and fair-minded pragmatist. I welcome her nomination, and look forward to her service.