Among the less ridiculous charges (less ridiculous, for example, than the “reverse racist” attack that Rush Limbaugh and others of his ilk have fashioned) that have been leveled against the nomination of Judge Sonia Sotomayor to replace David Souter on the Supreme Court is the suggestion that diversity should not be necessary on the highest court in the land.
The basis for the charge is the simplistic assertion that, since “justice is blind,” the result in any particular case should not turn on the specific characteristics, beliefs or experiences (the generally accepted gauges of diversity) of any individual judge.
Thus it is claimed that President Obama should not have selected Judge Sotomayor if he did so because of her gender or ethnicity. (As a woman, she would only be the third of her gender to sit on the Court and as a Latina, she would be the first of that ethnicity to do so.)
Leaving aside the fact that the nominee boasts impeccable credentials (valedictorian of her high school class, summa cum laude and Phi Beta Kappa from Princeton, and law review editor while graduating from Yale) and that she has an inspirational personal history (raised by a hard-working single parent – her immigrant mother – in a low-income part of the Bronx), this argument fails to recognize the positive effects on securing justice that diversity on the Court provides.
The responsibilities of the United States Supreme Court are primarily focused on two types of cases: statutory construction and Constitutional interpretation.
Those cases that require the Court to construe a statute benefit from diversity for many of the reasons noted below, but they are less consequential since Congress can always “correct” the Court if the Court’s construction of a particular statute was not what Congress intended.
But ever since 1803, when Chief Justice John Marshall assumed for the Court the responsibility of interpreting the Constitution, all cases that have at their core a Constitutional issue fall within the Court’s jurisdictional purview. And those Supreme Court cases that interpret the Constitution immediately become the law of the land because they literally and definitively decide what the Constitution means on a given issue or subject.
Thus the nine who sit on the Court are, in effect, law makers, even though they are bound only to be law interpreters. This seeming dichotomy of purposes, to interpret on the one hand and yet create on the other, is the basis for the claim that “activist” judges should not serve on the Court. The term is a misnomer. Supreme Court Justices are required to be activists in promoting their interpretation of the Constitution. They literally have no other option.
What makes this point difficult for many non-lawyers to understand is the inherent ambiguity in many provisions of the Constitution. The Constitution provides, for example, that Congress “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Similarly, the people shall be free to bear arms, consistent with the requirements of “a well regulated militia.”
What do these seemingly conflicting provisions mean? Is a law that allows religious icons to be displayed in public places constitutional (free exercise) or unconstitutional (establishment)? Does a law restricting private ownership of fire arms violate the constitution (right to bear arms) or support it (“well regulated militia”).
How are such laws to be interpreted consistent with the Constitution? Do a Justice’s personal experiences, characteristics and beliefs bear on the answers? Might a Justice with a strong religious identity tend to see the question of a law allowing religious icons to be displayed as justified under the “freedom of religion” clause, while one without any religious background might see that same law as unjustified under the “establishment” clause?
Might a Justice born and raised in a culture where hunting was dominant view a law that restricted gun ownership as a violation of the “right to bear arms,” while one born and raised in an environment where guns were regarded as dangerous weapons principally used by criminals might see that law as appropriate under the “well regulated militia” clause?
In each example, and in many others that could be considered, both views merit consideration, which is why diversity is necessary. A Court comprised entirely of devout evangelical or fundamentalist Christians, for example, might never even give more than passing notice to an establishment clause argument in my first example. A Court comprised entirely of former hunters might completely ignore the “well regulated militia” clause of the “right to bear arms” provision.
The more diverse the Supreme Court is in its makeup, the more likely differing interpretations will be considered on any issue that is susceptible of differing interpretations. And, as a result, the resolution of those issues will be more carefully considered by the Court as a whole.
Diversity of experience is especially significant in this regard, for the simple fact that the United States is not monolithic and its population in not homogeneous. Rather, it is a country born from diversity – of thought, of beliefs, of cultures and of traditions. It is, in this respect, less “the great melting pot,” and more a stew pot of distinct ingredients.
In that context, nine men, all Caucasians and all religious (perhaps even all Christians), are less likely to consider fully the merits of any given issue than are nine distinctly unique individuals who are a mix of men and women, Caucasians and non-Caucasians, Christians and non-Christians (and even non-believers), former prosecutors and former defense attorneys, former advocates for big business and former public interest attorneys.
Indeed, such diversity might even include some who see justice in protecting the property interests of the property owners and some who see justice in furthering the aspirations of those seeking property of their own.
In the end, there are no purely correct interpretations of the many provisions of the Constitution. There are, instead, perspectives that can guide those with the responsibility to interpret those provisions. Diversity on the Court enhances the potential for broader perspectives, and consideration of broader perspectives can only promote the realization of true justice.
If racism is “a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race,” (Merriam Webster) than what is reverse racism? Belief that racists are inherently inferior?? I guess I shouldn’t doubt Limbaugh, though. His credentials are impeccable. After all, he has been on the radio for over 30 years after he almost passed two semesters in college. (“Hey Rush, shut-up and play that Credence song I requested an hour ago! More Rock, less talk!”)
The issue isn’t that one demographic is superior or inferior but that diversity has a way of improving the perspectives of all in a given group and improving the quality of decisions. If I am forced to deliberate and debate with someone with a different set of experiences and perspective, I may feel the need to revisit my views.
It may be time for conservatives to give up on buzz words such as “activist,” “socialist,” and what not. I really don’t think the new voters they wish to attract are impressed with these terms. As far as I can tell, the true definition of an “activist judge” is a judge that invalidates laws I like. Maybe it’s more like a judge that makes any decision I don’t like. Damn activists!!!
Despite the principe of Separation of Powers, each Justice by his/her decision acts as a legislator. And the variation of the decisons during the years reflects the change of mentality in the society. In that matter, the selection of Judge Sonia Sotomayor by President Obama is excellent. Thence the acting time of each Justice should be limited by the age of each of them and not by his/her death only.
Checks and Balances….. Please try to remember thats why we have the different branches of the government. The Supreme Court is a check and Balance to or for congress. Whether or not the Supreme Court agrees with or disagrees with the law or the case in front of them, there is no way in the world you can call that activism, not even in the most relax since. However, you can call a single judge that attempts to regulate laws an activist.
The definition of the word racism clearly explains that you can’t have “reverse racism”. And just because a person is a member of a “minority” group doesn’t mean that person can’t be a racist.
I agree with Miltiades that the Supreme Court appointments should not be life long, and if it truly were, the Justices wouldn’t be able to retire when it suited there apprearent political party. Consider the most powerful man in the world, The President of The United States of America, can only serve two elected terms. And some how a person that can potentially affect our society in a major way can maintain that position until they pass away or retire?????
The president can appoint whom ever he thinks is qualified for the Supreme Court. The question is will congress think that they are qualified enough to allow the appointment. As for Judge Sonia Sotomayor, I don’t know whether she is qualified or not but the fact that one of Her most publisized qualification is that she came from a one parent low income family doesn’t mean squat, the media should stick facts that pertain to the job. Wherther she is Liberal or Conservative her previous legal decisions and actions are all that should matter. Affirmative action is a tool that is beginning to contridict itself and here is what I mean. The very fact that people are considering Judge Sonia Sotomayor’s appointment because she is a “she” and because she is a latina proves that affirmative action is alive and well. The fact that her race and sex are used as valid qualifications only means that the person making or supporting the selection of her are not only racist, but sexist as well.
I wanted to comment on your interpretation of the constitution but i will save that for another time. Can’t waite to hear back.
Ah, but you miss the entire point of my column with that last paragraph, Roshawn. What makes a person qualified for the Supreme Court most definitely can and should include specific aspects of his or her background, including the kind of compelling personal story that Judge Sotomayor presents.
To be qualified for the Supreme Court, one must have the intellectual capacity, experience in the law, some measure of competence of the highest level, and a personal perspective — born of the individual’s own unique characteristics, experiences and qualities — that make the person extraordinary.
I submit that Judge Sotomayor’s background is highly relevant, and that it suggests a person who, in addition to her extreme intellect, wide and varied background in the law, and obvious competence as an attorney and judge, make her a most qualified nominee.
It’s the right-wing attacks on her that don’t amount to squat, except for their highly insulting nature.
I think it’s absolutely amazing that people are completely misunderstanding the relevance of Judge Sotomayor’s background–and the spirit of Professor Telfeyan’s column!
First of all, I think it’s interesting that people are making it seem as though the only characteristics considered are Judge Sotomayor’s gender and ethnicity. As if she is somehow less deserving of the position. The implication of such views (see Roshawn’s post above) is that white males, who constitute 106 of our 110 United States Supreme Court justices, all made it on merit alone.
She’s not being nominated simply “because she is a ‘she’ and because she is a latina” [sic]. She is admired because she went from a housing project to the Ivy League. Not an easy task.
Judge Sotomayor spent her childhood in a housing project in the South Bronx, won scholarships to Princeton and Yale, and went on to become a prosecutor and then a civil litigator. She has seventeen of years experience as a federal judge on the Second Circuit! What? That doesn’t matter?
Judge Sotomayor’s biographical information is covered so much because it is a novelty. We’ve never had anyone like her before on the Supreme Court. She’s more than qualified for the position. That’s not what the discussion is about. No one’s arguing she isn’t qualified.
It’s figuring out who will be a good addition to the Supreme Court. Who do we want? Whomever gets nominated will be qualified, by the way. On paper, everybody looks the same. They all are these shiny, perfect people who all went to Harvard or Yale and enjoyed professional success as lawyers and judges. All were on Law Review and high grades and test scores. We’re beyond all that. Now we have to look at the individual nominees.
Judge Sotomayor’s background is just the frosting on the cake. President Obama didn’t want to say it so I will. As a Hispanic woman, she would add diversity to the Supreme Court. Yes, I said it. Diversity. It’s not a bad word. And just in case you missed the memo, diversity does matter.
And by the way, in making nominations to the Supreme Court, American Presidents have been doing it for years. It’s just that nobody noticed or cared because they all just happened to be white and male. But diversity was definitely an unspoken goal.
In fact, if you go digging into American history, you’ll find that geography and religion were often recognized and used as criteria. The Court even had an unofficial “Catholic seat”. And later, a “Jewish seat.” Why did our former Presidents preserve a New England seat on the court? Or a Virginia seat? Why does that matter? Why were our forefathers so concerned with regional differences in the early days of the republic? For some reason, they thought that nominees were defined by their home state.
Diversity does indeed matter, folks. It especially matters in the law. It’s what helps lead to fair and just results. The Supreme Court, just like the Bar, should reflect the very people it represents.
The law is not an exact science. Legal disputes can’t be solved using plug-‘n-chug methods. There are no empirical formulas. Especially in constitutional law. Like Professor Telfeyan points out above, the words in the Constitution are ambiguous and open to interpretation. It’s why there is so much litigation.
Judicial holdings are not made in a vacuum. And here’s the thing: A judge’s background, experiences, views, characteristics, biases, etc are inseparable from their views. And this is true of every single person who has ever served on the court. Yes, even Scalia. I know, shooooooocking.
Her background is relevant because she will bring a fresh pair of eyes to claims that come before the Supreme Court. Look, Supreme Court rulings have real consequences that affect real people. And guess who feels the brunt of judicial decisions the most? Take a wild guess. Go ahead.
I’ll give you a hint: It isn’t the rich and powerful.
It’s usually the poor, the discriminated, the weak, and the miserable. Who do you think these laws affect? For example, if Roe v. Wade is struck down tomorrow, who do you think will be directly affected by this? That’s right! Poor women (society will suffer for it, too, but we won’t feel the burn for several decades). You know why? Rich people don’t give an s*** about these laws! Why? Because they don’t need to!. They have the money to fly to Switzerland to get their abortions. Or pay some doctor here under the table to perform the procedure. Poor people don’t have many options or resources. Sadly, they need the most protection.
Now back to Sotomayor, she’s experienced the real-world. She’s not another legacy kid. She is a highly successful individual from humble beginnings. That right there is impressive. Besides intelligence, knowledge, skill, and a strong work ethic, it also suggests that she possesses some other great qualities such as perseverance, resilience, determination, and tenacity. Don’t we want someone with those qualities on the Supreme Court?
She just might have a different perspective than someone who came from a life of privilege. Now I’m going to go out on a huge limb here and assume that life is just easier and your chances of going to an Ivy League university (often considered the “golden ticket” to professional success) increase when you’re a WASP from a wealthy family and grew up on the Upper East Side. And you have two parents who not only raise you, but have the money to pay for your cello lessons, the private tutors (and prep school!), the ballet classes, the test prep, the polo lessons, and summers in the Hamptons. Even better if they are society people with connections.
I’m going to assume that is slightly more advantageous than growing up in a crappy one bedroom in the South Bronx.
So before crying affirmative action and making a bunch of retarded, ill-informed assumptions, do some light research. There is so more to Judge Sotomayor than her ethnicity and gender. But these characteristics help shape her.
There is so much more to this issue and I feel like I haven’t even begun to scratch the surface. But it would take me a ridiculous amount of text to explain it here.
I appreciate that Professor Telfeyan didn’t avoid this very important topic.
Leading the totalitarian thrust into education is political correctness and a misguided definition of diversity. Even the Catholic California Hospital in Los Angeles where my wife had two hip joints replaced, has its employees sporting brown long-sleeved shirts with “Diversity” stenciled on each sleeve. This brand of diversity is collective and racial in nature. It is ultimately demeaning and dangerous. “My diversion is better than your diversion!” (Almost a quote from Judge Sotomayor)
Diversity in its true and most productive form – that in the unique gifts and talents each of us is endowed with. This true diversity doesn’t know racial or ethnic boundaries, but only the opportunity to discover and put these gifts to use for the good of all and especially for the glory of God. That requires a living and learning environment that encourages and allows exploration and upward mobility. Historically the best place in the world is the United States of America. Sadly, all the “Yankee ingenuity” in meeting new product needs and challenges is being transferred to the Chinese while we look like Great Britain after WWII.
National Geographic is concluding in 2010 a 5-year study of the DNA of indigenous people around the world. It is based on the scientific truth that all humans came from one set of parents in East Central Africa, and that DNA is altered slightly by migration. You can send NG a DNA swab and learn how your ancestors migrated ($99). We may be racially and ethnically diverse, but we’re all from one origin. Make the most of it. http://www.nationalgeographic.com/genographic
The real secret to successful diversity is found in the same reason the USA has been so successful: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Remember two things – “endowed by our Creator” and “consent of the governed.” Many have died defending that right to true diversity.