Sonia Sotomayor was approved by the Senate yesterday by a vote of 68-31, and becomes the first Latino judge to sit on the Court. Judge Sotomayor's background is very impressive and she deserved the position. In fact, she has more time as a judge than anyone else currently serving on the Court had when they were appointed. But there are several things that I am troubled about or find puzzling in this nomination process.
The first is the fact that everyone keeps talking about an "impartial judge" and justice being "blind." Of course that is the ideal and what everyone wants, but the simple reality is it is impossible. Judge Sotomayor cannot see the world through anything other than the lens of being a Latino woman, which is what everyone was so upset about from her comments which were taken totally out of context. She can't do that just as Chief Justice Roberts cannot see the world through the eyes of anything other than a white man. That is his and her experience of life. While they certainly try and see things impartially it is impossible to ever fully do so. And why is it that we only ever try and apply this standard to minorities? We never talk about whites, or for that matter men, having to move beyond these categories in order to judge fairly. Why? Because our society expects people to see things like white males do.
Which brings me to my next point. If true impartiality was possible, there would be no question or debate about who should serve on the court. But, everyone brings with them a personal vision of the law, of justice and the role of the court. That means from the start that none of the judges are impartial because they all view what they are doing and how to interpret things, the Constitution in particular, very differently. That is a given from the start, and therefore indicates partiality. Another thing that is given is that ALL judges are "activist" judges.
Judges are activist by the very nature of what they do. If they strike down a law or ruling by a lower court, it is activist. If they uphold a law or ruling by a lower court it is activist. That is the way our courts are set up, and have been since Chief Justice John Marshall ruled in Marbury v. Madison that the court had the right to decide constitutionality. That little fact is not contained in the Constitution; the courts decided they had this right. Now if that is not judicial activism I don't know what is, but I don't hear anyone decrying this role of the court. Instead it is all about how people feel the Constitution should be interpreted, and again that is where no one is impartial. Everyone brings their own theory of interpretation to the court.
The other thing that is interesting is the Republican Party's take on Sotomayor. President Bush was trying to court the Hispanic vote, and many feel they are necessary for future victories. But for some reason they voted in large numbers against Sotomayor. This includes Senator McCain, who has talked about the need for the Hispanic vote, and then for the first time in his career voted against a Supreme Court nominee. First time, against Judge Sotomayor. How well do you think how she was treated will play in the Hispanic community? I could be totally wrong, but I don't think it has gone over very well.
Everyone has to realize that sometime in the next forty years, whites will become the minorities in this country. This scares many people. I think it is the reason so many people are throwing up ridiculous ideas against Obama. He doesn't look like them. Instead he looks like the future, and that is terrifying, and they don't know what to do about it. The time of white privilege and white majority is passing, which is all for the good, but any time there is change people become edgy, especially those who benefit the most from the status quo.
My final issue with this whole process is how ridiculous Supreme Court nominations have become. For the first time ever the last three Justices have been approved with more than 20 Senators voting against them. This, in and of itself, is not the problem. The problem is that rather than voting whether someone is qualified for the court or not, they are voting whether they like them ideologically (which again shows how ridiculous the whole idea of impartiality is).
What's worse is that most of the "ideological" requirements for serving on the court have little to do with what they will actually rule on. Since Roe v. Wade was decided in 1973 the Court has ruled on only a handful of abortion cases. From the importance everyone puts on it you would think they issue numerous decisions every year, but they don't. They take up many issues regarding the death penalty every year, but this is never discussed. They also issue few decisions regarding affirmative action, but again this gets lots of attention.
What we should be focusing on is their partiality. How do they view the court? What does stare decisis mean to them and how do they use it in making rulings (ie is it of primary importance or just another consideration)? What do they think the courts role is in relation to the interstate commerce clause (which gets many more rulings)? In other words, lets ask them about the real issues they will be ruling on, not the things that are important to others but which the court rarely addresses.
And this is true for both Republicans and Democrats. I might not like Justice Scalia's view of the law, but I do not doubt his intelligence or his ability to serve on the Court. To me that should be of primary importance, because ultimately you never know what they are going to do once they get to the court. And if you don't believe me, look at Chief Justice Earl Warren who led one of the most "liberal" courts in history, even though he was selected by Richard Nixon for nomination by President Eisenhower.
It's time to move past petty party politics and begin working again on deciding what is best for the country.
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