WASHINGTON — Senator Lindsey Graham, the engaging South Carolina Republican, lectured the Supreme Court nominee Sonia Sotomayor last week that if he had made a comment like hers that a “wise Latina woman” often reaches better conclusions, it would have a been a career-ender.
The cable-news commentators concurred and the nominee, playing the create-no-waves confirmation game, expressed regret. Actually, her remark was rational and Mr. Graham’s analysis flawed.
Suppose, for example, he had said: “I would hope that a wise, white Southern male with the richness of growing up in South Carolina would more often than not be more sensitive on the issue of race relations than a white Northerner who hasn’t lived that life.” While some might have disagreed, most of his constituents would have agreed, and his future would be as bright as ever.
The Sotomayor hearings followed the now-predictable pattern of partisan-edged questions with evasive answers, where little is learned about either the jurist or the law. Almost none of the questions were unfair or even that tough; compared with earlier confirmation sessions, it was tame stuff.
What endures, however, is the spectacle of middle-aged, white Republicans lecturing the first Latin female nominee about the irrelevance of race, gender and life experiences for a judge. Even Mr. Graham, one of the more enlightened lawmakers — a strong immigration advocate and a thoroughly modern Republican — didn’t get it.
Others, especially the committee’s top-ranking Republican, Senator Jeff Sessions of Alabama, were fixated not on Judge Sotomayor’s 17-year record on the federal bench — she would have the most extensive judicial background of any justice in the past 100 years — but on a few of her speeches suggesting she has been shaped by her experiences and ethnic heritage.
Instead of raising doubts about the nomination, the Sessions obsession only reinforced the picture of a narrow Republican Party uncomfortable with differences and resisting diversity.
The political context is that only four of the 17 female senators are Republicans and white males make up almost 90 percent of the party in that chamber.
It isn’t much better in the House of Representatives, where 59 of the 256 Democrats, or almost one-quarter, are women and only 18 of the 178 Republicans are women. Of the 43 blacks in Congress, all are Democrats. Of the 26 Hispanic members, 22 are Democrats.
With Hispanics the fastest-growing slice of the American electorate, the hectoring of Judge Sotomayor seems politically inexplicable. All judges are influenced by how they were raised; the law and the Constitution aren’t mechanical templates, unaffected by perspectives and even prejudices. Why was segregation the law of the land for so long?
Imagine in 1967 criticizing Thurgood Marshall, the great civil rights lawyer who became the first African-American on the high court, for believing that his background would have an impact on his role. Of course it did.
Republicans have recognized that reality in the past. Justice Samuel Alito cited his own family’s immigrant past: “I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender.”
The poster person for identity politics was Supreme Court Justice Clarence Thomas, who took the bench in 1991. Mr. Thomas’s origins as a struggling young black man from Pin Point, Georgia, became the Republican narrative in his contentious confirmation fight: “I can walk in the shoes of the people who are affected by what the court does.” In short, his life’s experiences.
When in this past term the Supreme Court ruled against a strip search of a 13-year-old girl, is there any doubt that Ruth Bader Ginsburg, the only woman on the court, brought a perspective unfamiliar to the other eight? Personal stories have long been championed as a requisite for the judiciary by conservatives and liberals alike. In the 1960s, those unhappy with the criminal-rights decisions by Chief Justice Earl Warren’s court would argue that it would be different if any of the justices ever got mugged. Experiences were a virtue, they argued.
The court ought to reflect diversity of background, profession, perspective. A shortcoming in recent years has been the absence of anyone with an extensive record in elected office — Sandra Day O’Connor served for a time as a state legislator — who might better appreciate the effects of decisions on real-life politics.
An example: In 1997, the court unanimously decided that a civil suit for sexual misconduct against President Bill Clinton could continue, rejecting the president’s argument that such actions should be delayed until his term of office was over.
In Clinton v. Jones, Justice John Paul Stevens deemed it “highly unlikely” that such a lawsuit would “occupy any substantial amount of petitioner’s time.” A few nights later, the late Senator Daniel Patrick Moynihan, a political historian of unsurpassed wisdom, said this decision was naïve, reflecting the lack of anyone familiar with the way politics works.
Of course, the ruling led to further hearings, which led to the Monica Lewinsky scandal, which occupied more than a “substantial amount” of the petitioner’s time. A judge with a more seasoned understanding of the real world of politics might have understood this.
The Supreme Court is well served with intellectual opposites like Antonin Scalia and Stephen Breyer, both of whom reflect where they come from.
Judge Sotomayor may not achieve that intellectual pinnacle, but with the bright mind and ready charm she demonstrated last week and with her unique perspectives and personal biography, she will add to the richness of the court’s deliberations.
She is expected to be confirmed with support from close to half the Senate’s Republicans, mirroring the backing Chief Justice John Roberts received from Democrats four years ago.
Instead, unfortunately for Republicans, the dominant memory of those sessions will be of white guys lecturing a Latin woman about ethnicity.
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