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Sotomayor’s Bumpy Road to Confirmation

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Posted on Aug 6, 2009
Sotomayor hearing
AP / Pablo Martinez Monsivais

Senate Judiciary Committee Chairman Patrick Leahy swears in Supreme Court nominee Sonia Sotomayor during confirmation hearings in July.

By T.L. Caswell

(Page 2)

The emptiness of the Republican argument was targeted by Marie Cocco, a syndicated columnist featured on Truthdig, who said of GOP Sen. Jeff Sessions: “The senator pre-emptively declared that he would not vote for a judge who uses the ‘empathy standard’ in deciding cases—a reference to the sensitivity toward average people that President Obama said he looked for in nominees, and which has been transformed by the political right into code for favoring blacks or other ethnic minorities over whites. Sessions seemed to predict nothing short of the collapse of American law as we know it if Sotomayor is confirmed. …”  Sessions later would be one of the 31 “nays” in the Senate vote confirming the Sotomayor nomination.

Another of Truthdig’s syndicated columnists, Eugene Robinson, wrote: “Republicans’ outrage, both real and feigned, at Sotomayor’s musings about how her identity as a ‘wise Latina’ might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any ‘identity’—black, brown, female, gay, whatever—has to be judged against this supposedly ‘objective’ standard.”

The egomaniacal thinking of some right-wing congressmen who assailed Sotomayor might go something like this: I’m white, I’m male, I’ve got money. My reality is the only true one, because it’s divinely decreed. God votes for my life experience. Case closed.

Years before he nominated Sotomayor, Barack Obama himself had something important to say about the approach of judges. A July article in Truthdig quotes then-Sen. Obama as saying in 2005 about the Supreme Court:  “ … 5 percent of cases … are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

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Obama’s remarks align with Sotomayor’s 2001 Berkeley address. Near the end of her speech, the judge said: “[T]o understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference … [will result from] the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”

The gross prejudice—an “anti-white” and “anti-male” prejudice—alleged by many of the judge’s opponents is hard to see in the context of the full speech.

Fortunately for the nation, the arguments against the nominee did not carry the day. Sotomayor is expected to be sworn in quickly as an associate justice of the Supreme Court. She has promised to make decisions on the basis of the laws of the land. I believe she will do so. And surely her life experience will influence those decisions—just as life experience has contributed to the rulings of every other judge, male or female, Latino or of any other ancestry, who had a life before ascending to the bench.

In light of Sotomayor’s confirmation and other recent news, doors appear to be opening wider in America. In the same week that the judge was testifying before the senators, Judy Chu of Southern California became the first Chinese-American woman elected to Congress.

The “woman’s experience” may be finding deeper root in public life. Maybe one day “thinking like a woman”—if that phrase means empathy, compassion, aversion to violence and being open to talking things out—will no longer be a sin for public officials.

As syndicated columnist Ellen Goodman wrote in Truthdig: “Wasn’t it OK—even important—for women to bring a different perspective to the table when talking about science, violence, business? Couldn’t they bring a different perspective to the bench when listening to Lilly Ledbetter plead for equal pay, or to a 13-year-old who was strip-searched? … [W]hen women are asked to ‘rise above’ their experience, to ignore the difference in background, they are often being told to expunge the female and to think/work/live/rule like a man. Score one for the status quo.”

Here’s a perverse little fantasy that might bring a smile to those folks who demand that judges park their life experience at the curb outside the courtroom: Suppose there was a way to brainwash people so that experience did not influence judgment, and this mental scrubbing was universally inflicted on judges and other agents of government. An instant cure for the judicial activism of those damned left-wing judges, eh?

Maybe. But life would quickly curdle under the administration of “neutral” robots. Soon, there would be few smiles on the right-hand fringe or any other part of the political spectrum. It wouldn’t take long for the unhappy results of soulless governance to devastate the American polity. The heart and humanity of executive, legislative and judicial functions would disappear, and the nation would suffer deeply for it.

For now, there are no such automatons, however much extremists might call for them, and flesh-and-blood people hold seats of governmental and judicial authority. For now, the nation will have a wise Latina on the Supreme Court—only the third woman to sit there and the first justice of inarguable Hispanic extraction. May Sonia Sotomayor serve well. May she serve the interests of all Americans in making fair and just decisions under the laws of the United States.


T.L. Caswell worked for the Los Angeles Times for many years and now edits for Truthdig.


New and Improved Comments

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By Willie, June 20, 2011 at 5:32 am Link to this comment
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You’ve hit the ball out the park! Icerndible!

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By GB, August 8, 2009 at 7:06 am Link to this comment
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Sotomayor’s road wouldn’t have been so bumpy if the dems would use their majority and start speaking out against the treason that has become the republican party. Obstructionist, corporatist, lying, and hypocricy has become the norm for the conservate movement. The dems should stop appearing on fox because not only do we know that is the network for the republican treason platform but it continues to give republicans fodder to use in their treasonous talk. The judges bush appointed are pure wingnut hacks and they flew through the process like butter.

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By John Hanks, August 7, 2009 at 3:38 pm Link to this comment
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Given her basically conservative judicial philosophy, I suspect she may be the most tedious and boring justice in the court.  The court should be replaced by an annual jury.

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