Jay Ambrose: Sonia Sotomayor no doubt has some real qualifications for the U.S. Supreme Court. But she herself once made an incredible, identity-politics case about how Latinas are superior to white men as judges.
President Barack Obama said he deliberated carefully in nominating federal appeals judge Sonia Sotomayor to serve on the Supreme Court, and no doubt he did.
He deliberated on whether she was a woman, and she passed that test. He deliberated on whether she was Hispanic, and she passed that one, too. He deliberated on whether she had a moving, poverty-to-prominence story, and sure enough, she did. Then he threw in other things -- she is smart and knows the law.
Sotomayor no doubt has some real qualifications for the job. But she herself once made an incredible, identity-politics case abut how Latinas are superior to white men as judges, and, in announcing his choice, Obama tried to put an intellectual sheen on a similar kind of argument.
"The life of the law has not been logic, it has been experience," he quoted Justice Oliver Wendell Holmes as having said, and then, according a news account, added how big a deal it was for a justice to grasp "how the world works, and how ordinary people live."
Obviously, a judge needs to know more about the world than what the law says, but just as obviously, it is an excursion into indefensible, stereotypical thinking to suggest that there are some kinds of hard-knocks experiences that will make you a special judge, and some less deprived experiences that will not.
Sotomayor knew difficult circumstances in her youth, as did any number of people whose attitudes are maybe 180 degrees different from her on all kinds of topics. Holmes, who served on the high court from 1902 to 1932, came from privileged circumstances -- his Boston father (Oliver Wendell Homes Sr.) was one of the best-known intellects of his time. Does it follow that if Sotomayor makes it to the court, she will arrive at much better decisions than those of Holmes?
She seems to think so. "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," she said some years ago in a lecture that, as you might imagine, has been getting considerable attention of late.
Bigotry is writ large in that remark, and it's a bigotry that apparently carries over into Sotomayor's legal thinking. The fire department in New Haven, Conn., gave a civil service exam to see who would be promoted. No black qualified, and as a consequence, the city promoted no one. Sotomayor's decision in a suit was that this was just jim-dandy.
Is that what her "experience" has wrought -- a deep, abiding, racially based unfairness that also happens to disregard the Constitution's requirement of equality under the law? The possibility that she thinks her personal judgments outweigh the law itself is made hard to deny when you watch a much-mentioned Internet video in which she talks in a panel discussion about the role of appeals courts in making "policy." She immediately gets it that this was an inopportune thing to say, but what follows is more wink, wink, nudge, nudge than a disavowal of the proposition.
We hear a lot about how Obama was once a professor of constitutional law and is to be trusted on whom he appoints, but my guess is that his attorney general, Eric Holder, summed up the Obama philosophy when he derided the idea we should be bound by an "18th century" document and said what we needed instead was a "living Constitution."
This phrase means that judges make up the basic law of the land as we go along -- it is a philosophy that actually gives us a dead Constitution. My guess is that Sotomayor will be elevated to the court and that this lawless objective will move closer to reality.
Jay Ambrose, formerly Washington director of editorial policy for Scripps Howard newspapers and the editor of dailies in El Paso, Texas, and Denver, is a columnist living in Colorado. He can be reached at SpeaktoJay@aol.com.