Awkward Utopia

Upon hearing of Judge Sotomayor’s nomination to the Supreme Court I was very pleased and couldn’t comprehend why she ignited such strong Republican opposition. Although to be fair, I guess if she had been welcomed with open arms by those on the right her nomination might have been summarily withdrawn.
President Obama said he wanted to nominate someone with “empathy” and who didn’t necessarily come from the typical background, the appellate bench. So with issues of fairness and competence at stake, and knowing that elections have consequences, I was bracing for the worst. It turns out Sotomayor has the right background (17 years as a judge) and she’s not particularly empathetic. Case in point: in Re: Air Crash Off Long Island, a case in which she went out of her way and dissented, arguing that crash passengers weren’t entitled to more money because of statutory language concerning accidents on the high seas. An “empathetic” and outcome-oriented judge might have overlooked what she thought was the best reading of the statute, particularly when another reading was plausible enough to convince two of her colleagues, but she held her ground. I have no doubt of her willingness to administer equal justice to rich and poor, corporation and natural person.
Her willingness to stick to the text of the law sometimes puts her on the liberal side of an issue, but you can’t blame her for it if she’s just following the law. Case in point: Riverkeeper v. EPA where she ruled that the requirement to use the “best available technology” prevented the use of cost-benefit analysis. Best available, not cheapest. It may be bad policy, but that’s entirely beside the point; she’s a judge. The case got overturned on appeal 5-4, where the majority chose to defer to the agency despite the statute, but too much deference can be a bad thing, especially if it contradicts the clear statutory language.
Her background is also promising. She served as a prosecutor and in private practice as a defender of intellectual property. She is catholic, which might make her pro-life (the five current catholic judges on the bench are Roberts, Scalia, Thomas, Alito, and Kennedy). More encouragingly though, her background has shown in her rulings, which don’t coddle criminals (she has a reputation for being tough on crime) and aren’t entirely hostile to the pro-life position (see Center for Reproductive Law and Policy vs. Bush) concerning the so-called Mexico City policy.
Perhaps her most controversial ruling was the recent case Ricci v. DeStefano, where she ruled that throwing out the results of a test for firefighters after the fact because only white and hispanic applicants had passed did not constitute discrimination against them. On its face the decision appears ridiculous, and Sotomayor most likely supports affirmative action anyway, but the decision can be justified in light of the relevant precedent which established the doctrine of disparate impact, a travesty that makes all tests suspect of being discriminatory and which has a real impact in gutting the very idea of a meritocracy in government and the use competitive civil service exams to bring it about. While I hope now the Supreme Court overturns Sotomayor’s ruling and adds clarity to the situation, the precedent was binding on lower court judges, and New Haven’s position that it discarded the test to comply with the doctrine is reasonable. Had the city not done so, it could have been sued by the black firefighters. Damned if you do and damned if you don’t.
Taking her cases in aggregate, and analyzing the statistics, some complain about her high proportion of cases that were overturned on appeal. But the key is that the Supreme Court chooses what cases to hear and is more likely to hear a case if it already disagrees with a lower court decision. Besides, being overturned only signals disagreement with the current court. Imagine if conservative judges were held to that standard and denied confirmation for their disagreement with a liberal court. Requiring a nominee to agree with current decisions has the nasty effect of perpetuating the ideology of the court forever.
That being said, most of the attacks have focused on her extra-judicial appearances, since there is nothing particularly outrageous in her decisions. Let’s consider this one first “court of appeals [as opposed to district courts] is where policy is made…we don’t make law I know”. It may scare some conservatives to hear that judges make policy, but as long as they make policy and not law, it’s fine, so long as the policy is made not on what the judge thinks is the best policy but what he thinks is the correct policy called for in the law. To deny that judges make policy is absurd. We all (liberals and conservatives) care about who is on the court precisely because the court makes policy, that is to say, the decisions matter not just to the parties currently before the court. In fact anything else would be antithetical to the rule of law. Parties similarly situated ought to receive the same ruling. If one minor is not executed because his execution is deemed cruel and unusual punishment, then other minors aren’t executed for the same reason, and so it becomes the policy of the United States not to execute minors, not because the judges find it’s “bad policy”, but because they find it’s “cruel and unusual” and thus constitutionally prohibited; regardless, policy was made.
Her second statement concerns a “wise latina woman” making better decisions, more often than not, than a “white male”. The statement is indefensible, but it is certainly not racist. At best it is shameless self-promotion and at worst excessive pride in her linguistic heritage, but it cannot be racist, because Hispanic is not a race. Anyone who wants to classify Hispanics as being of a different race is an ignorant bigot. All it takes to correct the “confusion” (to be charitable) is one look at a census form. Regardless, the real fear for conservatives ought to be if when she says “better” she means “more liberal”, but her record does not lend itself to that conclusion.
Only Obama truly knows if his decision was motivated by affirmative action concerns, but to assume so and deny her confirmation on those grounds and be consistent, there would have to be an unfair presumption of unfair selection for all minority nominees. Besides, if Obama really limited himself in his choice, it only hurts him in the long run in that he has a less intelligent nominee who cannot be an “intellectual counterweight” to Scalia and frees future (perhaps Republican) presidents of pressure to appoint this or that ethnic group. If she is obnoxious and not that bright as has been alleged, when the other liberals on the court have to work with her, they might rethink their support of affirmative action. And if Obama assumes she is a liberal just because she is Hispanic, he does so at his own peril.
I see Sotomayor as a very ambitious woman who probably told Obama whatever he wanted to hear (he lays out his scary judicial philosophy in his book The Audacity of Hope), but who nonetheless appears to be a moderate both from her decisions and appointment process (by presidents of two parties and confirmed by a senate controlled by the opposition party both times). It is someone you would expect from a liberal president facing a conservative Congress, and since the vacancy does not go away if her nomination fails, for fear of having a perhaps less outspoken but more extremist nominee, Republicans ought to say what they want and maybe even vote against her, but they better make damn well sure she finds her way to the bench, and who knows, it certainly would be ironic if she surprises Democrats as her predecessor surprised Republicans.