Sotomayor and Diversity

Obama’s first Supreme Court pick is in: Sonia Sotomayor, a federal appeals judge with a Puerto Rican background.

Those who have been following the speculation leading up to this pick at all have probably heard the name before. Popular wisdom suggested the president would pick a woman, preferably a minority one.

A few weeks ago, Stuart Taylor Jr. at the National Journal, via, offered his take on the “perfect pick:”

What Obama needs, in short, is an intellectually stellar, not-too-old, Hispanic woman lawyer with empathy for the powerless; views on social issues that are predictably liberal but not so activist as to inflame the Right; views on presidential war powers that are predictably deferential but not so much so as to inflame the Left; broad real-world experience; and, of course, rapport with Obama. No such human being exists, I suspect.

Well, we’ll hear quite a bit more about her level of judicial activism in the coming weeks, I’m sure, but one thing we can be sure of is she’s both Hispanic and a woman. And the fact that we’re using those demographic characteristics as criteria begs for comment.

First, a fact: President Obama was going to nominate a woman. Period. All four of his finalists were women, and it’s no coincidence he picked the Hispanic one. So, a question. Is that OK?

On the one hand, each and every one of us — conservative/liberal, black/white, male/female — gets a little quesy when we say someone was picked because they are a certain race or gender. Where we differ is whether color and gender are acceptable at all as criteria (and to what extent) given the nature of our society.

So in one corner we have Wendy E. Long, counsel to the conservative Judicial Confirmation Network (via the NYT):

Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written … She thinks that judges should dictate policy, and that one’s sex, race and ethnicity ought to affect the decisions one renders from the bench.

(Sotomayor admits as much when she says things like: “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.” In fairness, she backed off it in the same speech, saying: “I know this is on tape, and I should never say that, because we don’t make law.”)

And in the other, we have Ruth Marcus, a Washington Post columnist (via the Economist):

(Marcus) argues that “it’s so essential that President Obama’s nominee to replace David Souter be a woman.” She admits discomfort to making such a blatant claim, but says that a female justice, “like a justice who’s a member of a racial minority, or who’s served in elective office, or who’s been in private practice—brings a useful set of life experiences to the art of judging. Because it is an art; it involves the exercise of judgment, not scientific measurement.”

Law as absolute, unaffected by the whims of a particular justice’s viewpoint v. law as artform, very much dependent on personal interpretation.

I think there’s ample evidence that, regardless of idealist notions of how the Supreme Court should work, personal values certainly influence one’s interpretation of law. Of the current nine, only David Souter (now retired) and John Paul Stevens, appointed by Republicans George H.W. Bush and Gerald Ford, respectively, have voting records that don’t match the ideological (read: partisan) background of their appointers. And, of course, Court opinion with respect to civil rights and other social issues as society itself has changed.

This would indicate that there is some measure of truth to the “law as artform” argument. To this, I think conservatives would say, sure, but that doesn’t mean it should be that way, and it certainly doesn’t mean you cater to that mindset when making a pick.

But it would be a disservice to both viewpoints to say that this adequately defines the crux of the issue.

The broader problem here, and one that applies to all walks of life, not just Supreme Court nominations, is selecting someone on the basis of race or gender.

The argument for it on the Court, and on, say, a newspaper’s staff, is that a diversity of viewpoints is a necessity if all viewpoints are to be represented. Advocates of the law as artform argument maintain that, given the subjective nature of interpretation, it is in the country’s best interest that all members of society have equal voice in the judicial process (and in the legislature, etc.). Opponents will either offer the argument floated above, or take it a step further, saying that in a society founded on the principle of equality should not have appointment/hiring/admission decisions made on the basis of race or gender. Period.

And both sides clearly have a point. As someone moderately supportive of affirmative action policies, I’m still a little uncomfortable when I see the principles they espouse put into practice. Harriet Miers, a female Supreme Court nominee who got absolutely trounced in the confirmation hearing for her lack of qualifications, is a great example of what can go wrong when we place too high a premium on biological features for the sake of diversity.

But for every Harriet Miers, there’s many more Thurgood Marshalls out there. And, given the rigor with which nominees are poked and prodded on national TV, there’s little chance of a Harriet Miers making it through the confirmation hearings in this day and age.

So, the question to ask ourselves is, given a base level of competence that we expect all our Supreme Court justices to have — which we can, for now, assume characterizes Sotomayor — is it OK to take aim at diversity for diversity’s sake?

As a matter of practicality, I’d say so. As a matter of ideals, the line gets pretty blurry.


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About the Author

Brian Eason is a University of Missouri graduate with bachelor degrees in Journalism and Political Science. He has covered Congressional elections and local government for the Columbia Missourian and worked as a general assignment reporter for the State Journal-Register in Springfield, IL. Brian has also had articles published in Roll Call.

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