Who would have expected the ugly reaction to the nomination of Judge Sonia Sotomayor to the Supreme Court? Newt Gingrich, de facto leader of the Republican Party, calls this first Hispanic nominee to the court a racist, urging her nomination be withdrawn. Rush Limbaugh, the party’s enforcer, compares her to David Duke of the Ku Klux Klan. A writer in the National Review even criticized the way she pronounces her name.
Much of America has come a long way on race, as the election of Barack Obama demonstrated. The Republican right not so much.
A few facts are worth bearing in mind. This is a remarkably accomplished jurist. Raised in a poor family in the Bronx, she lifted herself up to graduate at the top of her class in Princeton and went on to become an editor of the law journal at Yale Law School. She’s had 17 years of experience on the federal bench, and was nominated to the District Court by that radical leftist, George Bush Sr.
Some critics suggest that Sotomayor isn’t brilliant enough for the court. None of them, I would bet, can match her academic record. Her opinions, we’re told, are not scintillating. But by that standard, the Supreme Court would have more vacancies than justices. She’s said to be abrasive from the bench, which sounds like a classic sexist slur about women who express their opinions in public life.
Sotomayor’s judicial record reveals a moderate justice, one very much in the mold of Justice David Souter, whose seat she will be taking. She is not the champion liberals have sought, eager to have a counterweight to the very aggressive and very conservative Scalia-Alito-Roberts-Thomas wing of the Court.
Much has been made of a speech she gave several years ago, where she suggested that ethnicity and gender of a judge “may and will make a difference in our judging,” and jocularly expressed the hope that “a wise Latina woman with the richness of her experience would more often than not reach a better conclusion that a White male who hasn’t lived that life.”
The notion that one’s background informs one’s opinions is just common sense. The very conservative justice, Samuel Alito, an Italian-American, made the same point at his confirmation hearing: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender.”
When the giant, Justice Thurgood Marshall, was named to the court, everyone understood it made a difference. Antonin Scalia, the leading opposing force to Marshall on the court, said: “Marshall could be a persuasive force just by sitting there.” His presence made the justices think more seriously about race.
But although Scalia may have respected Marshall, he didn’t hesitate to oppose his positions.
Surely, Sotomayor’s remarkable experience growing up in poverty in the Bronx will help broaden the court’s perspective. But it’s not likely to make Scalia, Alito, Roberts or Clarence Thomas curtail their campaign to weaken or overturn established civil rights laws.
Some critics of Sotomayor have focused on a one paragraph order issued in a case involving a promotion exam for New Haven firefighters. Sotomayor was on the three-judge panel that affirmed a lower court’s ruling that upheld New Haven’s right to throw out the exam that had a discriminatory effect. Ironically, this is exactly the kind of judicial restraint–the court deferring to New Haven’s decision implementing the civil rights laws–that conservatives pretend to demand in justices.
But the assault on Sotomayor isn’t about her skills as a jurist. This is classic race-based politics from the Republican right. Our real problems are too great for us to fall back into this. The slurs reveal a lot more about those who are spreading them than about Sonia Sotomayor, who will soon take her place on the Supreme Court where we can all hope she will make a difference.