It was hard to tune into the Sotomayor confirmation hearings without hearing mention of the now-infamous “wise latina” comment. Even though, as Sen. Lindsey Graham of South Carolina told her, “Unless you have a complete meltdown, you’re gonna get confirmed,” not a single day passed without continuous pestering from the Right.
But lets take that comment in context. “I would hope 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.” It doesn’t take an exceptionally high IQ to see what she means. Our views and convictions are shaped by the totality of our life experiences, and one who has gone through more struggle and more obstacles is bound to have a greater understanding and appreciation for the varying experiences of others. Or, in the blunt words of Ruth Bader Ginsberg, the male Justices “have never been a thirteen-year old girl.” It’s futile to argue that personal convictions, religions, and experiences do not shape judicial philosophy—of course they do! There is no one way of adjudicating, and abortion is a wedge issue not just because of the strict constructionist versus living document schism: it’s a wedge issue because of the religious and moral views of the justices. That is why, despite the phrasing of the of the Casey appeal, the court chose to uphold and strike down individual parts of the Pennsylvania law, rather than overturn Roe altogether.
Of course, the Latina comment is a valid point to question her on. But to basically devote days of hearings to the same question? We get it—you think she’s a racist and an affirmative action baby. We disagree. Let’s move on to her qualifications, okay?
That’s one thing no one can argue with. Sonia Sotomayor is qualified for the job. She graduated at the top of her class from Princeton and then from Yale Law School. She worked as an ADA and in private practice, and was appointed by Bush 41 to the Federal District Court, and then by Clinton to the 2nd Circuit. She was a respectable, if not remarkable, judge, the sort of “safe” nominee that a President hopes to choose as his first. (Considering that another front-runner for the nomination was Kathleen Sullivan, the openly gay former dean of Stanford Law School who wrote amici briefs in Bowers v. Hardwick and Lawrence v. Texas, Sotomayor, with her practically non-existent record on wedge issues like abortion, was a safer choice.)
The conservative case against affirmative action is that it will forever taint the accomplishments of its beneficiaries. That’s not what happened here. Sotomayor was not elevated above her status because of her race or her gender; rather, in a field of roughly equally qualified candidates, these two things, coupled with her judicial record, gave her a slight edge. Rather than picking a nominee out of a hat of qualified individuals, Obama considered other factors, as he should: the courts should reflect the people they serve. With the Supreme Court being the least diverse it’s been in over a decade, having only one woman and one person of color, Obama was obliged to pick one of those categories and break a new barrier.
It’s also ironic that the very people who mount this harsh opposition to affirmative action are the same people who showcased the ways it can fail just two decades ago. Why yes, the Clarence Thomas fiasco, which basically defines the inappropriate use of affirmative action: choosing a judge for a life term just because of the color of his skin. When Thurgood Marshall retired, Bush 41 felt obliged, against Marshall’s wishes, to replace him with another black man. But, then, as now, black republicans were hard to find. So the inexperienced Clarence Thomas, with only one year on the DC Circuit under his belt, was tapped for the job. Despite the circus that his confirmation hearings became, he was confirmed, and took the oath of office days ahead of time to ensure that any other allegations of inappropriate behavior came too late. (Jeffery Toobin’s “The Nine” has a lovely segment on Thomas.)
He didn’t even have a judicial record of any substance to examine, unlike Sotomayor, whose over 3000 cases provide ample evidence into her thinking and philosophy. Among these many cases are also many that counter the “racism” claims of the Right. In fact, she rejected over 90% of race discrimination cases that came before her. The Ricci case was an anomaly, blown out of proportion and paired out of context with the Latina comment to slander Sotomayor’s reputation.
In short, the Sotomayor hearings were not exactly the shining moment of the Senate Judiciary Committee. Unable to dredge out any cases on the traditional culture war issues, the opposition took to the worst kind of slander. No one is expecting them to like the nominee or agree with her judicial philosophy—although she did vote with Republican colleagues on a fair share of her cases—but many of their questions were repetitive and pointless.