Thus far, since Obama announced that Sonia Sotomayor would be his choice for Supreme Court Justice, the debate has cycled through charges of judicial activism, racism, racialism, the degree to which empathy is a qualification or disqualification, etc. Much of this controversy has centered on one sentence from a Sotomayor speech she delivered 8 years ago, and 1 court case, Ricci, in which she ruled against white plaintiffs.
What is puzzling about this is the extremism of the charges against her and the paucity of evidence that any of the charges are true.
In a few weeks, we will enter a new phase in the confirmation process—the Judicial Committee hearings—in which she will be asked about how she would have ruled in a variety of past Court cases. She will dutifully decline to answer since she doesn’t have all the facts in front of her and otherwise feign ignorance regarding anything of controversy. Then because Democrats have the votes, she will be confirmed. One never finds out anything about the nominee in these proceedings.
This is the pattern of most Supreme Court nominations. Why is the public debate about judges so shallow?
It is because no one wants to talk about the elephant in the room. The fact of the matter is that Supreme Court judges—whether liberal or conservative—decide cases largely based on their political ideology. (It is a little more complicated than this but not much) Sotomayor is a liberal. She was chosen because she has liberal views and she will probably vote on most cases with the liberal wing of the court. Republicans don’t like this; Democrats do.
Our discourse surrounding Supreme Court nominees would be less tedious and more informative if we just admitted that (1) SCOTUS takes cases in which the law is unclear, (2) When the law is unclear judges have to appeal to something other than the law to clarify matters, (3) the best they can do is consult their moral and political beliefs to determine their conclusion.
Instead, we try to preserve the fiction that the law must never be sullied by politics or morality so opponents are forced to dig up personal dirt and the nominee is forced to act like a potted plant.
Tags: legal judgment and impartiality, Sonia Sotomayor, Supreme Court
