Sonia Sotomayor and the Supreme Court

As a Supreme Court associate justice, Sotomayor will vote more often than not to the right of David Suter's record. Many decisions for the foreseeable future will be six to three, rather than the five to four to which we had become accustomed when Souter was on the Court.

President Obama's nomination of Second Circuit Appellate Court (NY region)Judge Sonia Sotomayor represents a lost opportunity to tilt the Supreme Court back just a bit from its extreme radical, activist (political) orientation, one that resembles a right-ended, bottomed-out teetertoter. Five right-wing justices,( Roberts, Alito, Kennedy, Scalia and Thomas), The Gang of Five, are political extremists intent on undoing established law passed over the last seventy-five years--the New Deal and Warren court decisions and others derived from them. To make the Court a positive institution, it must have progressive, activist jurists (that value individual and defendant rights) to offset the hugely disproportionally radical representation of the existing Court.

The appointment of Sotomayor tells me something about President Obama, the smoke and mirrors magician. Obama wants a mainstream candidate, ideally a judge, who will pass ethnic and gender considerations, but not challenge the court's status quo, someone who would influence decisions as Brandeis and Brennan did. The nomination suggests what has rapidly become "vintage Obama"--appearance (or image) over substance (change). After seventeen years sitting on various court benches, Sotomayor's decisions seem as ordinary as Jell-O.

After law school Sotomayor was a prosecutor, then a corporate lawyer. She apparently decided not to clerk. Her court decisions relate mostly to business law, but when related to defendant and individual rights her early experiences seem to hold sway. Obama, for all his chanting about change (which can go in various directions and is not always for the good), obviously feels comfortable with Sotomayor's curriculum vitae. He chose someone who would be easily confirmed, in at least a partial bipartisan vote in a very conservative (and unrepresentational) Senate. As a consequence, Obama limits himself by the low expectations bipartisanship dictates. He suffers from failure of nerve. He refuses to act on what he knows is true and proper. When he does act, it's as "Bush Lite". After only six months as President, the power brokers have him in their collective pocket; or, is it a straitjacket?

Ethnic and gender issues aside, with the sizeable pool of progressive constitutional scholars and social justice law pradctitioners, Barak Obama could have done better! Of course, to nominate a William Moses Kunstler-or Lawerance Tribe-like figure, male or female, of whatever ethnicity or race would have required courage and a true belief in constructive change.

Belatedly, David Souther won my respect for what I perceived as an abhorrence of and loathing for what the Supreme Court became under Rehnquist and Roberts. I was not necessarily supportive of some decisions. His roll became that of a moderate in dissent to a radical majority. What I like most about Souter is that he makes an art of writing his decisions. And he is a genuine scholar. Perhaps earning a degree (magna cum laude, Harvard 1961) in Philosophy (also studying jurisprudence as a Rhodes scholar at Magdalen College, Oxford) is a better preparation for a future justice than serving as a prosecutor and corporate lawyer?If this is correct, in this measure, Souter's absence will be sorely missed.

The Warren Court was extant when Souter graduated Harvard Law School in 1966. His undergraduate senior thesis was on the legal philosophy of associate justice Oliver Wendell Holmes (1902-32). Ironically, had it not been an era of Republican Party dominance (and skulduggery), in this case Souter was the surreptitious nomination to replace associate justice William J. Brennan, Jr. (1956-90), we never would have heard his name or been treated to his presence. As I recall, Souter was selected because he had no significant record as a sitting judge. He was something of an enigma who eventually revealed himself as a centrist. (President Reagan's 1987 nomination of Robert Bork failed in part on Bork's judicial record and writings. His judiciary committee hearing performance also worked against him. As a consequence no post-Bork Supreme Court nominee speaks his or her beliefs before the Senate Judiciary Committee confirmation hearings.)

Interestingly, William J. Brennan, Jr. (1956-90) was nominated by President Eisenhower and became, according to the President, his biggest nomination mistake. Brennan is one of the historic giants of the High Court. Judge Sotomayor understandably is not in either Brennan's or Souter's league; and she will hardly be noticed after her first term, when she could slip into the background, but remembered at times as the first Hispanic appointed to the Supreme Court. (If Portugal is within the Hispanic world, associate justice Benjamin Cardozo(1932-38), born into a community of persecuted Spanish and Portuguese Jews that had been established in New Amsterdam in 1654, would qualify as the first Hispanic.) Judge Sotomayor was painted by Senate Republicans as a potential High Court activist in an extraordinary streach of imagination and another shocking display of partisan politics.

One fact about Sotomayor is that in seventeen years she has never exhibited such a tendancy. What amazes the objective onlooker of the Rehnquist and Roberts Courts is the unashamed activism of its right wing zealots, joining the above named Chief Justices are associate justices Scalia, Kennedy, Thomas and Alito. No other evidence of activism, although there is much, is required than Bush v. Gore (Dec. 2000). With an unabashed display of partisan activism and innovative decision making, the Republican Supreme Court majority handed Geo. W. Bush the presidency. Five radical Justices called upon fanciful readings of the Constitution (so much for original intent and stare decisis.)To select a conservative Republican to resolve a very close vote in the Florida State presidential election might have been expected under martial law. The then Gang of Five issued in less than 24 hours an emergency injuction halting a vote recount ordered by the Florida State Supreme Court. Three days later on 12 December 2000, the same five Justices ruled that no further recounting could take place. The four disenters in Bush v. Gore (Stevens, Souter, Breyer and Ginsburg) had it right: the U.S. Supreme Court had no business involving itself, meddling with, the Florida presidential vote dispute. Bush v. Gore puts to rest any argument by Republicans against activists judges. It also puts an end to the claim that the Supreme Court functions with collegiality and is not a political power broker. Yet, conservatives deplore alleged activism or fear its latency in moderate conservatives such as Sonia Sotomayor. It's the pot calling the kettle black.

Judge Sotomayor has been labaled "harsh" and "a bully" by some Republican Senators in an attempt to undermine her nomination--to tarnish her image and question her temperament. The attacks strike me as misogynistic and suggest bigoted attitudes. I doubt if the Supreme Court has ever had a Justice who acts as rudely and arrogantly at oral arguments as does Scalia.

Judge Sotomayor has been ruthlessly attacked by Senator Jefferson Sessions (R Alabama) as too empathetic, which allegedly could lead her down the path to a "liberal, activist, results-oriented...world, where laws lose their fixed meaning..." Of special note, Sessions lost a nomination bid to be a Supreme Court justice in the Reagan era. And now he's harassing a Democratic nomineee to the same court. Who could take him seriously? If Senator Lindsey Graham (R South Carolina), also on the Judiciary Committee with Sessions, can vote for Sotomayor's confirmation, what is the problem with Sessions? Is Sotomayor's offhanded "wise Latina" comment of any real concern?

Sessions' record of what could be called intemperate statements that the NAACP and the National Council of Churches were "un-American" and "Communist-inspired" doomed his Supreme Court nomination as a non-starter.(Garbus 2002). Now Democratic Senator Spector, also on the Judiciary, states that Sotomayor was merely expressing "ethnic pride", and there was nothing wrong about that.

The nomination of Judge Sotomayor is a slight of hand, an artful dodge by a cautious President who seeks consensus, even if it diminishes his prerogatives. Selecting someone with Puerto Rican roots might be more ameanable to a color-conscious white majority than someone with Mexican roots. Of the two groups, I believe that a Latino or Latina deserves primary consideration for a Supreme Court nomination at this time. I base this on population percentage and what the U.S. has done to oppress Mexican immigrants and render Mexico a virtual failed state. Consider: the war waged against Mexico (1845-47) and the loss of much of its territory and future political autonomy; the concurrent invasion of Mexica City (and that some U.S. leaders wanted to take possession of the entire country); the Monroe Doctrine and economic domination, including NAFTA. Let us not forget the Bracerro program that was in effect for decades and that U.S. drug policy has lead to murderous Mexican drug cartels. By 2050, Mexican-Americans will be the majority population! President Obama, if he was seeking a symbolic nomination, missed the most obvious choice. I am not unmindful of the Spanish-American War and its consequencwes for Puerto Rico, which also became a U.S. colonial possession,with, however, U.S.citizenship for its (non-voting)population. The explotation of Puerto Rican labor in New York City and elsewhere in continental United States is unconscionable.

ADDENDUM:
President Obama's nonmination of Judge Sotomayor brings into question his earlier selection of his Chicago recreational basketball buddy, Arne Duncan for Secretary of Education over that of a highly qualified and respected academician, Linda Darling-Hammond, the Charles E. Ducommon Professor of Education at Stanford University, and among other rolls, is the co-director of School Redesign Network and author of The Right To Learn. In comparison, Duncan's nomination represents a serveral steps backward movement for public education.

According to Alfie Kohn, author Schools Our Children Deserve, Duncan could have been enthusiastically picked by Geo. W. Bush, who we sadly remember selected Rod Paige (of the "Houston Miracle" test score scam) as his Secretary of Education! Obama's choice is applauded by the right-wing, but condemed by Progresives. Also, parents are not pleased with the militarization of public education with Duncan as CEO of Chicago schools. He advocates private companies managing public schools. Duncan is a strong supporter of charter schools, as is Obama. For more information about Arne Duncan, see Kohn's piece in the 29 December 2008, issue of The Nation.

Obama's selection of Kathleen Sebelius (former Kansas govenor) as Secretary of Health and Human Services was another example of his centrist orientations. My impression of Barak Obama is that he keeps his positions on most domestic issues close to his chest. It is very difficult for reporters to pin him down, to get him to state unequivocally his beliefs and intensions; however, his nominations are quite revealing. Look no further than his nominations for key economic positions in his administration.