To the extent that I've been able to stand it, I've been watching the Sotomayor hearings. I couldn't watch much of the first day, when the august Senators spoke numbingly to their respective bases; but the questioning on day two has been interesting. Being a proud Agno/Atheo-American of Caucaso-Judeo heritage, I have some certainty that my opinions are worthy.
Much is made of the "empathy" trope; in fact,
I've written about it in disagreement with President Obama. More is made of the "wise Latina" comments. And whereas it seems as clear as fine crystal that Judge Sotomayor's decisions have been based on existing law (and that, as far as I can tell, she's far less of a judicial activist than Scalia, Roberts, Alito, whose opinions are full of rationalization that have nothing to do with law), I do think there are interesting questions at hand.
Why is it that the Supreme Court, charged with interpreting and applying law, so often provides diametrically split decisions? Why is it nearly always predictable on which side of a case a given Justice will come down?
Clearly, "the law" isn't clear. If it were, there'd be no reason for judges. Even more clearly, people look at a set of facts and draw different conclusions. Invading Iraq was a brilliant idea, it was the worst decision any president has ever made. It's made us safer, it's weakened us tragically. Universal health care is a right, it's a privilege. Deficits are necessary at the moment, they will send us to ruin. Senator Kyl asked Judge Sotomayor if she'd ever made a decision for which she hadn't found a legal basis but relied, instead, on her "heart." (The context was his derision at President Obama's statement that 95% of the time the law gives you the answer, but 5% of the time you must rely on your gut, or heart, or whatever body part is most appropriate.) No, was her answer. As, I'm certain, would be Justice Thomas's regarding his
lone dissent in a recent 8 - 1 court decision.
In saying what he said, and in her comments about her gender and ethnicity, President Obama and Judge Sotmayor were stating the obvious. "Obvious," however, and "uncontroversial" are far from the same thing. Nor, as we see hourly in our political discourse, are complex points -- ones that can't be reduced to five words and stuck on a bumper -- regularly submitted to deep thought. When the law is less than black and white (stop for a red light, go on green vs. "unreasonable" search and seizure, for example), people will differ. There's the 5%: when you must apply judgment and insight. Which comes -- ta da! -- from one's background and experiences. Hardly, it seems to me, the bailiwick of liberals any more than conservatives. And yet, here we are, listening to drivel from our elected officials. (Some of whom, it should be said, don't even try to hide the fact that they're
applying a double standard.)
There's an implication, here, that others
have described better than I: white Christian heterosexual maleness is the "norm," the baseline, the objective standard. Neutrality. It's only those who differ from those descriptions that have prejudices or "agendas." And yet, Antonin Scalia and David Souter, both of whom are in the preceding categories, reliably disagree almost always. Maybe we need to add "conservative." Guess so.
What poppyphallus!
We are who we are: the sum of family, life experiences, genetics, upbringing, schooling, uncountable other influences. To say otherwise is to deny reality; even dumber, perhaps, than insisting our planet is
6000 years old. If two highly educated and intelligent Justi can look at a case before the Supreme Court and come to opposite conclusions, how else to explain it, at least in part, than by preconceptions and prejudices, by their singular world-view? And why the assumption that the only people who assess facts based on the totality of their experiences are, by definition, non-white, non-male, non-Christian, non-heterosexual, non-conservatives? It's simply a foolish implication.
The difference between Sonia Sotomayor and the other justices now sitting is that she goes into it with a far greater judicial record than any of them had when nominated. It is, in fact, apparent, that she is a judge's judge. She's like my dad was: an applier of relevant law to the facts at hand. She's the opposite of a judicial activist. If, off the bench, she's said some controversial things, they most clearly are NOT reflected in her cases. Nor ought they be considered as controversial as some claim.
If the definition of judicial activism is going beyond law to advance an agenda, and if one measure of that is the striking down of existing laws and statutes, then the current court's conservatives are
far more activist than the liberals. I'm probably not the best judge of the validity of such a standard; nevertheless, it's simply false on its face to claim that there is a class of people -- any class -- who, by default and definition embodies a form of intellectual purity from which all others diverge.
) put in on the disqualified test, and how one has dyslexia. Wasn't that an appeal to 
empathy?