When Supreme Court Justice David Souter announced that he intended
to step down from the bench at the end of this year’s Supreme Court term, there
was a brief pause, a collective gathering in of air, followed by a frenzy of
speculation that did not end until President Obama announced his selection of
Judge Sonia Sotomayor as nominee. During
the days of guesswork and anticipation that preceded Obama’s nomination of
Sotomayor, political odds-makers seemed to favor the selection of a woman, with
most pundits leaning toward a woman of color, to replace Justice Souter. Everyone was on pins and needles, and who
could blame us? During the 2008
elections, the that the next President would most likely have the opportunity
to nominate more than one Supreme Court justice and shape the political climate
of the court for decades to come was one of the key areas of concern.
Pro-choice groups hoped for a nominee with a judicial record
supporting a woman’s right to choose.
Anti-choice groups busily combed through the records of likely nominees
looking for ammunition to block a pro-choice nominee. And everyone seemed to agree that the big
issue on the table during the nomination process was going to be abortion.
So, when President Obama nominated Judge Sotomayor many
people were surprised to see the nominee’s own race and gender, not her
position on abortion, emerge as the key battleground issues.
I was not surprised, nor do I think the emergence of race
and gender as issues during this pre-confirmation period means that abortion is
off the table. To the contrary, abortion
is one of the issues being debated by proxy.
Charges that reverse racism and sexism might have an impact on Judge
Sotomayor’s decision making ability are really charges that she might decide
cases concerning abortion rights, discrimination, and immigration rights
differently than conservatives would like.
America did not miraculously become a post-racial society
with the election of our first President of color and the storm over Judge
Sotomayor’s nomination is just one example of that. The issue at hand is not whether Sotomayor’s claim that a "wise Latina woman with the
richness of her experiences would more often than not reach a better conclusion
than a white male who hasn’t lived that life" translates into her being
unable to rule without prejudice in favor of people of color. A
review of Sotomayor’s judicial record shows that she does not reflexively
favor any group. In 96 race-related
cases, she rejected discrimination claims by an approximate margin of 8 to 1.
The issue is also not whether Sotomayor’s views on the role
of gender in judicial matters–interpreted for the most part through that claim
about what a "wise" Latina woman would do–will somehow translate into her
ruling in favor of women and reproductive choice regardless of the merits of
individual cases. As Jill Filipovic
explores in her piece Fair
and Balanced: Weighing Sotomayor’s Opinions, "Sotomayor’s only major
abortion-related case was Center
for Reproductive Law and Policy v. Bush – and her conclusion isn’t
going to warm the hearts of reproductive rights activists." The Center for Reproductive Law and Policy
lost that case, which allowed the Global Gag Rule to remain in place until President
Obama took office. Sotomayor has also
ruled in favor of anti-abortion protestors in not one but two civil rights
Jeremy Levitt, in a piece in the Orlando Sentinel (Sotomayor:
Race-baiting and the unpatriotic right), asserts that Sotomayor has forwarded
the basic premise that the gender, national origin and personal experiences
impact a judge’s decisions. Levitt, Associate
Dean for International Programs and a distinguished professor of international
law at Florida A&M University College of Law in Orlando, questions whether
that assertion is really a "novel revelation" and he flat out rejects the idea
that making that assertion is a public display of racism.
Despite Sotomayor’s judicial record on race-related
discrimination cases, she has been charged with the task of putting Republican
Senators at ease and calming their fears that a wise Latina woman would rule
with her heritage and gender in mind rather than the law. So even with pro-choice organizations seeking clarification
and assurances from the White House that Sotomayor will uphold Roe and
protect reproductive rights, Judge Sotomayor is being painted as a pro-choice
liberal activist judge by conservative groups and bloggers.
That’s because the overt questioning of Sotomayor’s ability
to judge fairly because she is a Latina has little to do with her judicial
record. Conservative opponents of Judge
Sotomayor’s nomination fear that she will shift once appointed to the bench,
much like they believe Justice Souter did, and they have latched on to her
"wise Latina woman" statements as evidence that she is likely to shift toward
the left. Another liberal justice on the Supreme Court would do
more than maintain the status quo; it would make the next nomination a
potential game changer and we should have no doubt that the game being played
is over a woman’s right to choose.
Judge Sotomayor now faces opposition that appears to agree
with her premise that gender, national origin and personal experiences impact a
judge’s decisions. Conservatives not
only validate the premise of her statement through their insistence that judges
be "strict constructionists" with clear ties to the Republican party, they also
validate it through their over the top
condemnation of Sotomayor’s assertion that a wise Latina woman would make
different decisions that a white man.
Beneath the surface is their acceptance that Judge Sotomayor is right;
that a woman of color, empowered through the richness of her heritage, would
reach a different decision than a white man.
They ought to know, since they bet on that logic proving true with both
so-called "strict constructionist" conservative judges they welcomed onto the
Supreme Court during the Bush Administration.
During the pre-confirmation period for Justice Roberts and Justice
Alito, pro-choice activists mounted opposition because we knew that one person’s
stare decisis is another person’s debatable precedent. Now conservatives opposing Judge Sotomayor are
demonstrating that they know that one person’s "better conclusion" is another
person’s judicial nightmare.