Latin@ Justice

This morning, President Obama nominated judge Sonia Sotomayor to replace Justice Souter on the U.S. Supreme Court.  And as expected, the blogosphere is abuzz with the choice.  We know much about her story: a newyorican who went to Princeton University and Yale Law School, a former federal prosecutor first appointed to the federal bench by President George H.W. Bush.  But the points of agreement end there.  To the critics, she is a judicial activist, incompetent, and unworthy of the nomination; supporters on the left disagree with these attacks.

I do not know enough about Judge Sotomayor and her time on the bench to form an opinion about her judicial temperament or to take guesses about what kind of justice she might be.  But I am glad that President Obama nominated not only a woman, but a woman of color. It is about time.

In thinking about this nomination, I am reminded of Chief Justice Roberts’ confirmation hearing, where he analogized the role of the judge to the role of an umpire.  As the nominee explained to the Senate Judiciary committee, “My job is to call balls and strikes and not to pitch or bat.” No question, this is what judges should do, what we should expect them to do.  But to say that a justice is no more than an umpire is not to say that all umpires are the same.  As any keen baseball observer will attest, not all umpires are created equal.  When calling balls and strikes, for example, each umpire calls the game differently.  In fact, the strike zone itself is not an objective area, enforced equally by all umpires; rather, the strike zone changes from one umpire to the next, from one batter to another.  Some have broad strike zones; some have narrow ones.

The implication of the analogy should be clear.  As we look ahead to the work of the Court, it should be clear that different voices and perspectives should be represented.  This term alone the Court will decide the scope of two important civil rights statutes, Title VII of the Civil Rights Act of 1964 and Section 5 of the Voting Rights Act of 1965.  Could anyone familiar with these landmark laws really argue that the justices will decide these cases on the basis of anything other than ideology and their strategic calculations about how best to see their policy preferences reflected in law? That is, does anybody really – no, really – believe that judicial activism is reserved only for liberal judges? 

Critics usually respond by placing merit and color consciousness in opposition.  That is, Judge Sotomayor was nominated to the Court because she is a Latina and no other reason.  But this argument makes me wonder whether these critics have taken a look at the current composition of the Court, or at past justices.  Just curious: absent the Miers and Carswell nominations, I can’t think of many other instances in modern times when white nominees have been attacked similarly.  Why is it that, knowing very little else, critics assume that a Latina nominee owes her accomplishments to her race and not her hard work and intellect?

After 240 years and 110 justices, the Supreme Court might finally welcome its first Latin@ amongst its members.  For those keeping score at home, this would make it two Blacks justices, three women justices, and one Latin@ justice.  I can only hope there will be many more to come.  About time indeed.