By Marc Seltzer; originally published on May 29, 2009 at politicsunlocked.com
The nomination of Justice Sonia Sotomayor to the U.S. Supreme Court fits perfectly with President Obama’s vision for good government: independent intellect, moderate politics, and pragmatism.
Sotomayor is a first generation Puerto-Rican American of humble upbringing. She distinguished herself academically, graduating summa cum laude from Princeton and editing the Yale Law Journal. Like Mr. Obama she proved herself and opportunity followed academic excellence.
Sotomayor has acknowledged that being Hispanic and a woman may be qualifications, or at least qualities, important to her professional career. “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,” she said in a speech. This differs from President Obama who hesitated to make distinctions part of his political language and for whom “we” most often meant middle-class Americans.
Republicans have attacked Sotomayor’s remarks as identity politics and raised fears of a judicial philosophy of preferences. But is this just grasping for straws?
First, simply, is the question of what she meant. Did she mean that it was about time for women and Hispanics to be better represented in government service? After all, there have been 110 Supreme Court Justices since the nation’s founding, and only two have been women. None have been Hispanic except Justice Benjamin Cordozo, of European Jewish ancestry, who may have had Portuguese bloodlines a few centuries back. Arguing that Cordozo keeps Sotomayor from being recognized as potentially the first Hispanic on the Court is nonsense.
Or did Justice Sotomayor mean that experience in life – adversity, discrimination, and disadvantage – helped her to build character and taught her about life in a way that wealth and social status might not have?
Conservatives may worry that she would be an advocate for women and for minorities on the court, emphasizing sympathy over the legal rules. This treads into especially difficult waters. Politically, liberals have often taken up the causes of women’s and minority rights. In the legal context, at least, conservatives have opposed affirmative action, or race-conscious government actions as reverse discrimination.
Commentators refer to decisions rendered by Ms. Sotomayor as technical and narrow rather than ideological and sweeping. In one case she emphasized how “embarrassing and humiliating” the school strip searches can be to teenage girls. Is this comment a sign of prejudice and activism? Because Sotomayor’s decisions are mainstream and are specific responses to facts rather than sweeping pronouncements of political theory, it is a stretch to find in them judicial activism or bias.
What is easier to find is pragmatism. Justice Sotomayor is known for concentrating on the facts of each case and for diligence and care in crafting her decisions.