Supreme Choices

Two points need to be made at the outset: the nomination of Sonia Sotomayor for the United States Supreme Court was the obvious, and politically clever, selection; and she will be confirmed, barring the equivalent of a political meteorite derailing the proceedings. And based on past standards, she certainly seems fit to serve. Nonetheless, there are two disturbing elements in her nomination – the obsessive focus on her “compelling personal story” and the lamentable resurrection of identity politics.

Her story is no doubt “compelling” – poor daughter of Puerto Rican immigrants, denizen of the Bronx projects who found her way to Princeton, Yale Law School, and years later to a federal judgeship. But “compelling personal stories” are acceptable material for a People magazine article; of what real relevance are they to qualifications for a Supreme Court position ?

Imagine, for a moment, the inverse of her story: a young white man is raised in luxury, the son of two distinguished judges, educated at the finest schools, lauded for his judicial temperament and abilities. Is he to be denied an appointment because his story is not compelling? And what if a candidate with a less “compelling” story is more qualified? Does her poor background render her more capable of interpreting the Constitution ?

Well, the President asserted that her background provides her with a wellspring of “empathy” that will render her a better justice. But consider: what role does empathy play in justice generally? On this matter, it is interesting to note that the Talmud required judges to have several indicia of compassion, particularly that they have children (Masechet Sanhedrin 36b), as those who have no children are presumed to have less compassion than parents have (children presumably force their parents to learn compassion, as well as tolerance and patience). On that score, Sotomayor – who is childless – fails. But must it be true that someone from a poor background will necessarily be more empathetic? One can easily argue the opposite: someone who “made it” by working hard might have less compassion for others, of similar circumstances, who are drifters and slackers.

Of course, the difference between the Talmudic requirement and the current situation (beyond the obvious that Talmudic law does not apply here) is that Sanhedrin judges were trial judges, where empathy is a useful trait in assessing the credibility of witnesses, and even invoking mercy in judgment. Does – should – empathy play any role on an appellate court, especially the Supreme Court which never sits as a trial court? The Supreme Court primarily decides issues of constitutional import – divergent opinions in Circuit Court opinions, passing judgment on the constitutionality of statutes, etc. Should empathy play any role in ascertaining the intent of the Framers of the Constitution ? If one answers “yes,” the question is, why ? Why should empathy figure in those judgments at all ?

Resolving conflicts of laws, antitrust matters, or the intent of Congressional legislation requires many traits, but empathy should be very low on that list. Should the High Court tighten the rules against illegal searches and seizures because it feels “empathy” for the criminal ? Should it provide for government funding for abortions out of empathy – and based, precisel=, on what constitutional provision ? Should it decide the fate of suspected terrorists based on empathy – or based on the Constitution ? That slippery slope – of allowing, and here expecting, justices to insert their subjective frameworks in the deliberations and inform their conclusions with their own biases – is what makes the return of identity politics so pernicious.

Once again, we have taken a U-turn from Martin Luther King’s vision of an America in which he hoped people will be judged “not by the color of their skin but by the content of their character.” The notion that, for example, a Hispanic is needed because the Court lacks a Hispanic, is patently offensive because it assumes that all Hispanics think alike, and therefore, the President need only select one Hispanic candidate from the list, and all is right.

In truth, identity politics is an old media game, and political ploy. No sophisticated, intelligent voter will support a candidate simply because that candidate nominates people of shared ethnicity. Certainly, the first President Bush gained no political capital from blacks after nominating Clarence Thomas to the Supreme Court. But this is a media game – keeping the ethnic and racial scorecard, celebrating the liberal choices as “inspired” (Thurgood Marshall, Madeline Albright, Sotomayor, et al) while disparaging the conservative ones as “tokenism”  (Sandra Day O’Conner, Colin Powell, Thomas, Condie Rice, et al). President Reagan’s Secretary of the Interior, James Watt, was forced to resign his post in 1983 when he remarked that a Senate advisory panel consisted of “a black, a woman, two Jews and a cripple.” He wasn’t wrong, he was just too honest. Perhaps people were outraged that he dared to point out the simple truth of “identity politics” run amok, of people being judged not based on their talents or abilities but on their membership in a particular group that is especially favored or otherwise entitled – by virtue of some extraneous, irrelevant characteristic – to a seat at the political table.

Obama’s choice then is most clever, as he satisfies the public advocates in both the Hispanic and feminist lobbies. As Justice John Paul Stevens is likely to retire in the next year, Obama will then have an opportunity to appoint another liberal, of course, but preferably one who is handicapped, a homosexual, and from a state that he did not carry in 2008. That would be a political jackpot, but what it says about the current state of American political life or the quality of the judiciary is another matter altogether. Conservatives, Jews (there are two already on the Court), healthy, heterosexual white males need not apply. “Content of one’s character,” indeed.

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