The Patriot Post® · Let the Games Begin

Here we go again. Every time a justice of the U.S. Supreme Court is nominated, inevitably in these times and regularly in the past, the debate is conducted in the middle of an ideological and cultural minefield.

One of the favorite tactics in this low sport is to take highly selected quotations from the record to inflame opinion against the president’s choice. Here, for example, is a much cited excerpt from a speech by the latest nominee, Her Honor Sonia Sotomayor of the prestigious Second Circuit Court of Appeals in New York, the same body that the legendary Learned Hand once ornamented:

“Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am … not so sure that I agree with the statement. First … there can never be a universal definition of wise. Second, 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.”

This quote is supposed to demonstrate the judge’s ethnic and sexual prejudices, at least to the casual reader, but what strikes me is not any chauvinistic twist that can be given her words but the caution of her phrasing. Note how carefully – yes, judiciously – she embeds multiple reservations in her opinion: She is not so sure she would agree with Sandra Day O'Connor. (Anybody who isn’t so sure she would agree with Justice O'Connor, the very exemplification of squishy swing-vote murkiness during her confusing time on the court, deserves a cheer. In general Justice O'Connor was to clarity what Madame Pompadour was to chastity.)

Judge Sotomayor’s tentative tone fit right in with the judicial temperament wanted in a Supreme Court justice: She “would hope” that a wise Latina woman, and one “with the richness of her experiences,” would “more often than not” reach a better conclusion than a white male who hadn’t shared those experiences. Fair enough. That assertion would seem no more objectionable than hoping a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina who hadn’t lived his life. For surely the judge is broad-minded enough to concede that Anglos, too, might live full, rich lives and even learn from their experiences. ¿Por qué no? Why not? It’s been known to happen.

It’s even possible for a Latina to be as limited and callow a clod as the typical drunk of impeccable Anglo-Saxon pedigree at your nearest country club bar. Individual differences do matter. Why, someone born with all the advantages of birth, natural intelligence, social position and devoutly cultivated virtues could even show more wisdom in his decisions than your standard representative of the latest and most fashionable ethnicity, sexual identity, and/or socio-economic class.

For example? Well, I keep thinking these days of the late Richard Sheppard Arnold of Texarkana, Ark., perhaps because a fine new biography of him has just appeared. I’d certainly take Chief Judge Arnold of the Eighth Circuit over any of the conventional mediocrities currently on the Supreme Court (and over its better judges, too) regardless of their race, creed, class or national origin. It would take a short-sighted pol indeed to pass over Richard Arnold for a seat on the court, which is what Bill Clinton did.

One sure test of Judge Sotomayor’s qualifications as a jurist would be to ask her opinion of Judge Arnold’s jurisprudence. The question would be an interesting test of her ability to discern true quality, and might elevate the whole confirmation process. In death as in life, Richard Arnold, the Learned Hand of his time, would have raised the level of discussion.

Consider the case of John Marshall, one of the first and certainly one of the greatest of our chief justices. He upheld the rights of the Indian tribes in case after case, though he himself was not only a white male but a product of the Virginia planter class. What a piece of work is man, whose mind need know no limits.

At the moment there’s some disagreement over whether the current nominee to the high court is the first Hispanic American to be so honored. More amusing than enlightening, this kind of disputation mainly demonstrates how misleading ethnic labels can be. Some argue that the first Hispanic nominee to the court was actually Benjamin Nathan Cardozo (1870-1938). He was also picked at a time when ethnicity was all the rage, though not in the same way it is today. Back in 1932, many considered Judge Cardozo’s being a Jew a disadvantage if not a provocation, while today Judge Sotomayor’s ethnicity and sex are clearly a political advantage in a nominee – if not the decisive reason for her being chosen in the first place.

That some would deny Hispanic status to the late great Justice Cardozo – he was a Sephardic Jew – is one sign of how much times have changed since his day, and how strangely, for the very root of the word Sephardic is the Hebrew for Spain – Sfard.The justice never denied his heritage. Indeed he was proud of belonging to the oldest wave of Jewish immigration to this country.

Another sign of how the times have changed, and not for the better, is how Justice Cardozo came to be selected: against all partisan, political and cultural odds. For there was already another, perhaps as great or greater justice of the Supreme Court (Louis Dembitz Brandeis) occupying the one-seat ghetto informally reserved for a Jew on the court. Also, Judge Cardozo, a Democrat, would have to be nominated by a Republican president, Herbert Hoover. Which he was. And for no better reason than his being the most brilliant, profound and eminently qualified scholar and jurist available for the seat. Even stranger, he would be confirmed by the U.S. Senate without a single dissenting vote. As we said, times have changed.

Today every dubious quote and decision that can be traced to Sonia Sotomayor will be used against her, while her identity as a Latina will be waved like a banner by her supporters, each side erecting the most elaborate case for/against her on the slimmest of foundations. The games have already begun as one side plays identity politics for a lot more than it’s worth and the other paints the lady from the Bronx as some kind of wild-eyed radical.

Case in point: Mike Huckabee, who made a lot better governor of Arkansas than he does a legal analyst, plunged into the debate with a broadside against the nominee worthy of a talk-show host. “The appointment of Maria Sotomayor,” he declared, “is the clearest indication yet that President Obama’s campaign promises to be a centrist and think in a bipartisan way were mere rhetoric. Sotomayor comes from the far left and will likely leave us with something akin to the Extreme Court.” Quite aside from the former governor’s tendency to substitute a colorful quip for thoughtful judgment, he couldn’t even get the lady’s name right. (Hey, they’re all named Maria, right?)

And the games have only begun. Before they’re over, every dubious decision and context-free quote that can be used against the nominee will be, and every sneaky trap sprung. The process is called Borking, after the judge it was used so effectively against, just as it was tried – to less effect – against The Honorable and honorable Clarence Thomas, who struck back with refreshing force against those who’d planned his high-tech lynching. Unfortunately, a worthy nominee to the appellate bench, Miguel Estrada, was shot down by much the same low tactics.

The process of confirming a justice for the highest court in the land – for a lifetime – would seem to require something more than this kind of reflexive politics and these kinds of games. The confirmation process should be more, well, judicious.

© 2008 TRIBUNE MEDIA SERVICES, INC.