Sotomayor: Standards & Double Standards

According to hard-liners on the right, Judge Sonia Sotomayor is an emotionally overwrought, non-intellectual, racist bigot, a benifactrix of gender preference and ethnically based affirmative action. In other words, they don't like her. This caricature is neither factual nor substantive. She is, in fact, a Summa Cum Laude graduate of Princeton and a Yale Law Review editor. You may not like her, but a dummy she ain't.

As to the deeper issue of whether biography is destiny, there is, at least, a question which is not automatically offensive--it has unfortunately been posed so far in a fairly offensive manner. In the best of all possible worlds, which this is not, our courts could be all white or black or Catholic or Jewish or Asian or Hispanic. Ethnicity and gender would not make a difference. In this imperfect world, I believe that having diversity of biography, experience, ethnicity and gender broadens our perspective and grants the court the opportunity for fresh insight. Sotomayor acknowledges her background as a factor, as part of who she is, but then says that it is her job to get past it.

Do I think there should be a Jewish seat, a Black seat, and a woman's seat? Should we always have at least one WASP, one Catholic, and one Jew? No. We should not have quotas, but we should look in places where we have not traditionally looked. We should look at our patterns and ask if we are keeping good people off the bench because of race, gender, religion or ethnicity. We should not elevate incompetents based on race or religion. But surely, in this great land of ours, there are qualified blacks, Hispanics and women in numbers that look a little more like our nation.

At the moment, we have seven white men--four of whom are Catholic. We have one black and one and a half Jews--all of Ruth Bader-Ginsberg and Brier before he converted. It is just possible that Sonia Sotomayor could add something to the bench. And no, even though Catholics are over-represented as a percentage of our population, her religion should not count against. However, pro-choice women may sleep restlessly.

As for her so-called radical decisions. Well, they are not radical. Her call, as part of an appellate panel, on the firemen having the results of the promotion test thrown out by the city, was not based on the merits of the test. It was a narrow decision on whether the city had the right to set the test aside. It was not if the test was good or fair. It was not if the city was smart or stupid. It was if they constitutionally could do what they did.

This is, in fact, exactly what conservatives say that they want judges to do--not go beyond the question, the four corners of the law and expand their decisions. This is exactly, incidentally--to open another can of worms--what the California Supreme Court did with Proposition 8. They did not judge if allowing same sex marriage was a good idea or bad. They did not judge if the proposition was smart or kind or really mean. They simply tried the question if the proposition was valid, if the people had the right to amend our State Constitution or if such an issue needed legislative approval. They found that the people had the right--not that the people were either right or wrong.

But back to Sotomayor. She will be confirmed--barring an unpaid nanny. The Republicans will continue to do themselves damage. They cannot win national elections without blacks and Hispanics--and many blacks and Hispanics are social conservatives. They were a large part of the vote that passed Prop 8. To fight this fight in a demeaning and mean-spirited tone is wrong morally and politically. Fight on the issues and if you pick up quotes, make sure that they are fundamentally different from what Justice Alito said at his confirmation hearing--how his history and the discrimination his Italian immigrant Catholic ancestors suffered informs his life. Pick something different from what Scalia said about how "Laws are made at the appellate level."

Finally, on both the right and left: Be prepared for surprises--some good and some bad. History shows that Supreme Court Justices are not very predictable.
©2009 Jonathan Dobrer
www.Dobrer.com