The Sotomayor Hearings: In Defense of Wise Latinas

I'm with Sen. Russ Feingold when he said earlier this week that, "At this point, perhaps we should all accept that the best definition of a 'judicial activist' is a judge who decides a case in a way you don't like. " And I'm also with Sen. Al Franken when he pointed out that "Justice Clarence Thomas voted to overturn federal laws more than Justices Stevens and Breyer combined" during the Rehquist era. I'm with these statements not simply because I'm especially fond of Midwestern Jewish liberal politicians (although that's part of it), but because both comments get to the heart of the matter surrounding the false furor around Judge Sonia Sotomayor's nomination to the U.S. Supreme Court. Over the past few months, we've seen the entire concept of what it means to be an 'activist' judge largely determined by voices in opposition to some of Sotomayor's decisions or supposed political leanings. And since the majority of Sotomayor's decisions have landed her squarely in the centrist/moderately liberal camp, there's little for opposing senators to introduce as evidence when voicing their displeasures. Given the solid majority Democrats hold, there's little any opponent could do to block the nomination, anyway.

So what we've witnessed is an increasingly monotonous parade of senators and politicians either falling over themselves with praise for her "remarkable American story" or sternly wagging their fingers at her inopportune remarks on "Wise Latinas" and questioning her capability at remaining blissfully bias-free and non-prejudiced in cases placed before her. The fact that Sotomayor is a female and a minority while the suddenly prejudiced-panicked are nearly all white men should be amusing, but it's not. It's too familiar to be funny.

These hearings are meant to be occasions to explore a judge's record, to scrutinize controversial decisions, lapses in judgement or glaring oddities within the official record. This is why the Ricci vs. DeStefano case is important to the current proceedings - it represents both a recent and controversial decision in which Sotomayor took part, and a decision later reversed by the Supreme Court. This reversal, of course, doesn't mean Sotomayor's opinion was "wrong," but it does suggest an occasion in which her judgement may have been flawed or compromised. I find the Ricci case to be a fascinating example of the twists of logic needed to sort out contemporary quotas based on race and ethnicity in the work force. I am also fascinated by how passionate white politicians get about questions of discrimination whenever it involves fellow white individuals. At any rate, Sotomayor should be made to carefully explain her reasoning behind the Ricci case, as well as her decisions in such cases as Center for Reproductive Law and Policy vs. Bush (which she decided in favor of the Bush administration and the controversial abortion-limiting Mexico City Policy). And yet, we've seen little discussion along these lines (at least Feingold pressed her on post-9/11 court decisions). The main interrogations of the day have followed three related paths - questioning the "Wise Latina" remark, asking whether or not she has a bad temper, and the constant refrain that Sotomayor will be unable to approach cases fairly and without personal bias.

These questions nearly all stem from comments made by Sotomayor outside of her courtrooms, either in public speeches or during interviews. And while any comment made by a public individual is certainly a fair target during confirmation hearings, this willful disregard of her decisions strikes me as odd - much like judging a candidate for a restaurant's head chef position by peeking into their home refrigerator and asking what sort of take-out they prefer rather than sampling their showcased dishes or perusing the menu. Either the Republicans truly believe that Sotomayor's record means nothing and that personal behavior counts for all, or they're aware of how bleak their fight is and are determined to sling as much mud as possible to achieve some form of personal satisfaction. The "Wise Latina" comment has, in my opinion, been willfully misconstrued, and replayed ad nauseam in the press and online. One can debate whether or not this line represents Sotomayor at her most insightful or eloquent. I'm of the opinion that the sentiment made quite a bit of sense spoken in the context of her speech at Berkeley during a Cultural Diversity Lecture. As Rush Limbaugh, Newt Gingrich and John Cornyn stumble all over themselves denouncing this rhetorical flourish as emblematic of dripping racism, one has to wonder - what are they so shocked about? Is the mere suggestion that a female or a Latino - or, even worse, a female Latina - might possess the capabilities of making "better" decisions truly an unthinkable position?

Perhaps being married to a strong woman in a male-dominated career area (doubly so - military physicians exist in work zones dripping with machismo) has made me more sensitive to the subtle and not-so-subtle methods men in power use to denigrate, test, dismiss or punish women they find threatening or simply more competent then themselves. I hear it in the patronizing voice used by Sotomayor's examiners. I hear it in the consistent referrals to her "temper" and "difficult nature" (as if Scalia and Alito are simpering wet noodles on their respective benches), as clear a codeword for "bitch" as you're likely to come across on the public record. I hear it in Lyndsey Graham's comment to Sotomayor that she'll almost certainly be confirmed unless she has "a complete meltdown" - language typical when demeaning feminine emotions and the "weaker sex's" propensity for hysterical behavior.

Yet the most distasteful aspect of this entire third-rate circus is the smugness of white southern Republican politicians glancing down towards Sotomayor and questioning whether she has it in herself to ever achieve the prejudice- and bias-free satori possessed by Sens. Graham, Sessions and Cornyn. The suggestion that personal diversity and gender differences might benefit the high court - might inject understanding, empathy and knowledge currently in short supply - is being painted as a pathway into chaos. While any judge must aspire towards impartiality, achieving this perfect state seems both unlikely and unreasonable. And yet, apparently, Justice Scalia is emblematic of the intelligent robot, trusted to be completely impartial and to possess no life experiences that might have any bearing on any decision rendered whatsoever, while a minority candidate - a woman, a Latino, both - arrives smothered in a lifetime of choking bias and prejudice, unable to produce a coherent thought without first mentally considering how it might benefit the "movement" or her fellow brothers and sisters in the barrio.

Perhaps we should see as a sign of progress the fact that no politician on the right has challenged Sotomayor's intelligence or capabilities, or that nobody has raised the once-common charge of "tokenism". I suspect this has less to do with Sotomayor's own impressive record and more with the fact that the Republican wing of American politics has lately proved expert at producing tokens to suggest some movement towards inclusion. One could mention the sorry nomination of Clarence Thomas, whose confirmation hearings are largely remembered today for the national debate on sexual harassment brought about by Anita Hill's accusations, but one should not forget that the majority of the debate surrounding Thomas dealt originally with his undeniable lack of experience (mere months on the federal bench, no published books, articles or briefs, having never argued a case before the high court, and boasting the lowest ABA rating of any confirmed nominee since the 1950s), and his quiet tenure on the court since 1991 has backed up these concerns (he once went 3 years without asking a single question). One could also point to the brief and disastrous Harriet Miers drama, in which a Bush lackey with little intellectual heft and zero judicial experience was hoisted up to replace the great Sandra Day O'Connor. And one could note the sad saga of Alberto Gonzales, at one time considered a candidate for the high court, yet a man of such questionable abilities and judgment that his tenure as Attorney General was little more than a farce starring a lightweight who had gotten in well over his head. No, when it comes to tokenism - that is, offering positions to individuals regardless of ability but with an eye towards quotas and forced diversity - the right owns it.

If the Republican party wants to suggest they are more than a regional gathering of southern white Christian males, they could do better than to line up against the first minority nominated to the Supreme Court in eighteen years, or the first woman in sixteen years. In a perfect world, I'd like to see a Supreme Court made up of individuals that truly represent the variety and diversity of our nation of 300 million. I'd like to see a panel of women and minorities pick apart the dinner comments of a white judge or cast doubt upon their ability to rule fairly. Mostly, I'd like to see Supreme Court confirmation hearings that are less about theatrics and playing for the cameras (the ass-kissing competition courtesy of the Democrats hasn't exactly been riveting viewing, either) and more of examining the record. As it is, the proceedings are little more than clumsy swipes at any meaningful dialogue on diversity or justice.

In the spirit of goodwill and humor, I'll finish this lengthy venting of spleen by quoting another favorite Jewish liberal of mine (although he's neither Midwestern nor a politician) -

You know it pisses me off a little
That this Supreme Court is gonna outlive me
A couple of young Italian fellas and a brother on the Court now too
But I defy you, anywhere in the world
To find me two Italians as tightass as the two Italians we got
And as for the brother...
Well, Pluto’s not a planet anymore either

-Randy Newman
"A Few Words in Defense of Our Country"