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Barack Obama needed four important qualities in his first Supreme Court nomination: first he needed to nominate a woman and/or a person of color; second, he needed to nominate someone who would not face confirmation problems, third, he needed to nominate someone who had no track record on any of the controversial issues of our times, and fourth, he needed to nominate someone who could go toe to toe with Antonin Scalia on precedents and legal theory. In nominating Sonia Sotomayor he received all–and more.
Turnabout Is Fair Play
The Republicans will now start digging for dirt on this future justice, but unless they know more than Obama’s own exhaustive investigators and the press–and Sotomayor herself has withheld something–they will find it hard to come by. Now their own strategy of Supreme Court nominees refusing to discuss possible cases or even judicial philosophy will come back to haunt them.
After the debacle with Robert Bork, the Republicans made a conscious decision to have their nominees stand on their existing record and say little about how they might behave if confirmed. For example, during the confirmation hearings of Chief Justice Roberts, Senator Arlen Specter tried to tease out the nominee’s views on Roe v. Wade.
Specter: But there’s no doctrinal basis erosion in Roe, is there?
Roberts: Well, I feel the need to stay away from a discussion of particular cases. I’m happy to discuss the principles of stare decisis.
Not satisfied with that answer Specter pressed further, but Roberts stuck to the script.
Specter: Well, do you see any erosion of precedent as to Roe?
Roberts: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again. And in the area of abortion, there are cases on the courts docket, of course. It is an issue that does come before the court.
So while I’m happy to talk about stare decisis and the importance of precedent, I don’t think I should get into the application of those principles in a particular area.
Remember that final quote when the Sotomayor confirmation hearings begin: “I don’t think I should get into the application of those principles in a particular area.” That has been the game plan for GOP nominees ever since Bork and now the tables have been turned.
The second part of the Republican strategy has been to nominate someone who has no rulings or writings to be found that bear on the controversial issues of our times. If someone has so much has made a cocktail party comment about Roe, for example, it probably disqualifies them from the Supreme Court because one side or the other in this long-running debate will take exception and block the nomination.
This is a sad state of affairs for it means we are in for at least a decade or more of Supreme Court nominees who are basically ciphers. We have no idea what they will do once on the Court until they are confirmed. However, it does not take much insight to assume that the Republicans had long conversations with their future justices about their philosophy and how they might vote on key cases. After all they had pledged to nominate justices who would vote to overturn Roe.
So we have to expect–and hope–that Barack Obama and his staff have had a similar conversation with Sotomayor. On Roe, for example, it is inconceivable that he would nominate someone who would vote to overturn the current ruling. Similarly, we should hope that she will also stand by the first amendment and not tilt the Court any further than it already has tilted in terms of equal opportunity and economic justice.
As I write this so-called conservatives have uncovered two off-hand remarks made by Sotomayor that have found their way to evening news casts and blogs. By now probably everyone in America with even a remote interest in this appointment has already heard them. The Republican’s attempts to read evil intents into these quotes is a sign of how politically charged the appointment process has become.
This is where Sotomayor’s second qualifications–here race and gender–figure into the picture, for if Republicans try to block this nomination with two innocuous quotes they risk alienating two constituencies without which they cannot hope to win the White House. It will further reinforce their status as a regional, ideological and minority party which is commented on in this month’s cover story.
In fact this nomination is a test more for the opposition then for the Obama Administration because this will be the first opportunity for the Republicans to lay out a vision for the nation. If the Republicans were smart they would get behind the Sotomayor nomination and save their ammunition for the next appointment Barack Obama is surely to make. If the Republican Party’s official standards become “our ideology or else” and any innocuous quote disqualifies someone from the Court, they risk looking like rigid ideologues who do not believe in compromise.
Barack Obama and the Democrats will then hold the high ground because they can say, “Look we tried to appoint someone who is a moderate and they turned her down.” This could have the unintended consequence of allowing the Democrats to nominate a true activist while they still hold a majority.
The First Hispanic Justice
Having a Hispanic justice has been long overdue. It is one of the last symbolic barriers that have remained in American society. That the one to break this barrier should be our nation’s first African American President is significant. While there is much talk in the press about Obama’s need to placate Hispanic voters who played a major role in putting him in the White House, we should not lose sight of the larger issue.
According to the Pew Hispanic Center nearly one quarter of the votes in the 2008 election were cast by nonwhites. But of even more interest are the future trends. The Center reports:
Between 2004 and 2008, the number of Latino eligible voters rose from 16.1 million in 2004 to 19.5 million in 2008, or 21.4%. In comparison, among the general population, the total number of eligible voters increased by just 4.6%.
A table from the Center illustrates this growth in a dramatic fashion.
In his influential book The Latino Wave, Jorge Ramos begins:
The United States is becoming a Latino nation.
By the year 2125 there will be more Hispanics than non-Hispanic whites in the United States.
More important, Ramos notes:
The growth and influence of the Latino community will significantly change the power structure in the United States as well as the way we live on a day-to-day basis.
Just as important was the need for Barack Obama to nominate a female justice to replace Sandra Day O’Connor. When George W. Bush failed to nominate another woman to replace her it may well have helped to set in motion the results of the 2008 election, for it signaled that the Republican Party did not seem to care about the female vote. Nominating Sarah Palin was not enough to overcome this deliberate and misguided slight, for not only was it a slap in the face of women it was a slap in the face of O’Connor herself who I am sure resigned with the idea that a woman would be appointed to replace her.
There are many people who believe this “quota system” for the Supreme Court is petty, but it is far from that. The nation’s highest Court should resemble the rest of the country. It should not be nine well-connected white men who all went to private schools and graduated from Harvard.
By appointing Sotomayor Barack Obama has made one of the more important statements of his young term, affirming that he intends to appoint people to the Court who will reflect American society. You can all but bet his next appointment will be an African American, for ever since Thurgood Marshall retired, this nation has gone without an African American who truly represented that community sitting on the highest Court in the land.
A Female Scalia?
There has been much talk among those on the left about having someone on the Court who could serve as a counter to Antonin Scalia, whose arrogance, judicial philosophy and opinions have made him the justice the left loves to hate. As far as the arrogance part, one Scalia on the Court is probably enough. Scalia’s notorious and at times condescending cross-examinations may have made him a hero to the far right, but having Rush Limbaugh-type comments coming from a Supreme Court justice is frankly out of line.
Sotomayor does not appear to have Scalia’s arrogance, but if there is one thing that experts agree stands out about her opinions it is their meticulousness. In even minor cases she is able to summon up an impressive battery of precedents, a practice that will make her a formidable counterweight to Scalia.
It is here that we come to the central dispute that has raged among legal scholars for much of the last century. Despite what one thinks of his opinions, Scalia has proven to be one of the more influential legal philosophers in Court history. His recasting of the old so-called “strict constructionism” into what he terms “originalism” ranks as one of the major legal accomplishments of our times.
Scalia and others have written and spoken about the definition of originalism in a host of articles and other forums, but perhaps Scalia’s most succinct discussion of his use of the term came last October in the Vaughn Lecture at the Harvard Law School. Referring to a case involving the Second Amendment (the right to bear arms) Scalia noted:
The court had before it all the materials needed to determine the meaning of the Second Amendment at the time it was written. With these in hand, what method would be easier or more reliable than the originalist approach taken by the Court?
Originalism does not invite the judge to make law what he thinks it should be. The historical evidence is sometimes indeterminate or subject to competing interpretation, but it’s not infinitely malleable.
In most cases, the originalist answer is entirely clear. Did any provision in the Constitution guarantee a right to abortion? No one thought so for almost two centuries.
Note the phrase “at the time it was written.” That is the key to originalism, for it believes we must interpret the law the way the writers of the Constitution intended. There is not belief here of the Constitution as a living monument, instead it resembles Lenin in his tomb, all made up and preserved to look exactly as he did when he was alive.
Arrayed against this is a growing body of legal theory that falls loosely under the term the “new legal realism.” It was the old legal realism and its belief that the law should take into account contexts and its use of historical and sociological evidence that produced cases such as Brown v Board where proponents mustered volumes of data showing the negative impact on people of color of so-called “separate but equal” schools. But that doctrine ran afoul of the rise of “strict constructionism” and the Republican Counterrevolution which saw legal realism as “judicial activism.”
The new legal realism seeks to use more modern and sophisticated tools such as behavioralist and statistical analysis. In a paper on the New Realism, authors Victoria Nourse and Gregory Shaffer argue:
In sum, the new legal realists commonly oppose a neo-formalist conception that is blind to real life behavior and to the institutional implications of judicial decision-making.
What the new legal realism does is put forward new concepts for judging that take account of cognitive psychology, social context and institutional process that can affect judicial doctrine and method.
This debate between legal philosophies may seem yet another abstract academic argument full of unreadable sentences and unpronounceable words, but it is in fact at the center of a larger political debate about America’s future. Scalia’s originalism has proven important for the Counterrevolution because it is in essence a counterrevolutionary doctrine. Where Karl Rove and others sought to turn the country back to the late nineteenth century, the originalists would turn the clock back a century further.
The law is to be seen through the glasses of the founders–glasses whose prescription is written by Scalia and other originalists. Roe can be dismissed because the founders and the law did not concern themselves with abortion. Our country lies forever frozen in the hot Philadelphia summer when the Constitution was written, a slave to the notes of James Madison and others who tried to capture what the delegates were thinking.
While still in its formative stages, the New Realism argues that the world has changed. Most important it recognizes that the views of long-dead white men–many of them slave-owners and all of them men of property–should not solely govern how we view the Constitution. Certainly the founders were not originalists or we would still be a colony of the United Kingdom. In their paper Nourse and Shaffer pointedly draw a parallel between the current economic crisis and the collapse of the belief in rational markets and the current crisis faced by the law.
Sotomayor is no New Realist nor is she an originalist. Her philosophy and opinions fall in the middle ground where most lawyers live today, which is to say that in this transitional period her emphasis falls strongly on precedent. Scalia may be willing to throw out precedents if they disagree with his originalist perspective, but Sotomayor would not be so quick to do so.
In her view, the stronger the precedent, the less reason to change it. In this sense I would term her an evolutionist who sees the law as evolving over time, but in an incremental and orderly fashion. While this may not be totally to the liking of either the left or the right, it may well be just the balance that we need today.
It is a perspective could well vault her into a position of intellectual leadership on a Court sorely in need of it. While new ideas about the law are brewing in forms like the “New Realism,” the current crisis should be a lesson in not being too hasty to toss out long-standing ideas and laws. In many respects that is what brought about the current mess as we threw out laws like the Glass-Steagall Banking Act in response to perceived changes in “the market.”
A New Leader for the Court?
This is why Sotomayor is the perfect choice. Against the originalists and strict constructionists who seem determined to take the Court back to the nineteenth century or before, Sotomayor will bring a perspective that says precedents matter. We cannot merely erase the body of law that has grown up over the past half century any more than we can turn back the clock on the reforms of the New Deal.
Ultimately we need a justice who passes what Eric Turkewitz calls the “Tissue Box Test.”
I want a nominee that knows what it’s like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.
I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want a nominee who knows what it’s like to be the underdog against corporate or government interests.
I want a nominee to know what it’s like to make the rent. To pay an employee. From their own pocket and not someone else’s. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.
Curiously it is precisely one of the quotes the right wing has dredged up from Sotomayor that argues she has this quality.
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.
Sotomayor went on to explain this more fully in a 2001 speech:
One must accept the proposition that a difference there will be by 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.
If, as James Carville has pointed out, Clarence Thomas can cite his life experiences and their impact on his judicial philosophy, why cannot Sotomayor? I, for one, look forward to the perspective Sotomayor will bring to this Court.
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