I had a chance to actually watch a lot of Tuesday’s hearings for confirmation of Sotomayor. The hearings should probably be called posturing hearings. It does seem that much of what is said by the senators has as much or more to do with shaping their own image as it does with trying to learn about the nominee.
The Republicans, understanding that Sotomayor’s confirmation is a forgone conclusion, have their only hope of preventing her confirmation by catching her in an error. They return to the same subjects over and over waiting for Sotomayor to make a mistake. Sotomayor has handled all the questions with aplomb.
Sotomayor was correct to walk away from her “wise Latina woman” comment, but she walked too far away. It is not true that a wise Latina woman will make a better decision than a white male. It is true that a wise Latina woman might make a different decision that is just as good as the white males. And it somehow never gets mentioned that for 180 years all of the Supreme Court Justices were white males and in the next forty years all but four Justices have been white males.
To watch the hearings is to enter a fantasy world where white males are the standard for objectivity. Where white males are never influenced by their life experience as a white male. But, of course, a Latina woman is going to always be influenced by her life experience as a Latina woman (even though she has a lengthy record of not favoring minorites).
The truth is that any justice is going to be influenced by his or her life experience. That’s the way it is, the way it has always been, and the way it will always be.
It is also the way it should be.
It is also that case that every judge should be able to empathize with the people who will be affected by decisions. This repeated mantra of “fidelity to the law” is not meaningless. Fidelity to the law should be the guiding principle, but the law is not complete. If it were, there would be no need for judges. Conservatives are happy to have empathetic judges, just as long as the judge is a conservative. Google “Alito empathy”.
Finally, an “activist judge” is a judge with whom the speaker does not agree.
Confirmation hearings should turn on one question only: Is the nominee qualified to sit on the Supreme Court. This is determined by asking the nominee about various issues that the Court has dealt with and likely will deal with. If the nominee can intelligently discuss the subtleties of the various issues, then the nominee is qualified.
Sotomayor is clearly qualified.
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