Futures and Options

Just another town along the road.

Friday, May 29, 2009


Judge Sotomayor has adequate credentials to be a Supreme Court justice. What saddens me about her nomination – even more than the impending retrenchment of liberal, living constitutionalist philosophy, which was fully expected – is that it confirms that blatant identity politics are still alive and well. The only reason she was considered for the job (and the real reason she will be confirmed) is because she is a Hispanic woman. Obama said as much when he introduced her as his nominee. Having a Hispanic woman on the court is all well and good, but I cannot abide placing ethnic identity above pure legal ability when filling a position of this importance.  And there were two other potential nominees, Diane Wood and Elena Kagan, who possess legal minds that are arguably brilliant (even if they are a little too liberal for my taste).   It is a shame that such extraordinarily qualified legal thinkers would lose out to a competent but average judge because of ethnicity.

You know, I can understand wanting to have legislatures that are reasonably representative of the ethnic makeup of the populations they represent. Legislatures are supposed to be in touch with and reflect the views of the people they represent. But judges are not. Judges should, indeed must be blind to the race and gender and background and wealth of the litigants before them. And of course a judge’s own race, gender, background, and wealth, should have no bearing on her approach to a case, an apparently inarguable proposition that neither Obama nor Sotomayor seems to endorse.

posted by Strix nebulosa at 06:53  


  1. “The only reason she was considered for the job (and the real reason she will be confirmed) is because she is a Hispanic woman. Obama said as much when he introduced her as his nominee.”
    Did you actually see his introduction? He said nothing remotely of the sort.

    Read the transcript:
    The fact is that you and every other commentator (on both sides) jump to the conclusion that the decision was about race because she is a Hispanic woman (as if the thinking was “Whoops, too many white men; better find a Hispanic woman!”). Her legal record indicates that she is a mostly moderate judge, whose racial background does not enter in to her decisions, and even you admit that she “has adequate credentials to be a Supreme Court justice.” Where is the evidence that she is racially motivated in her legal work?

    Who knew the spix nebulosa could be so anserine. 😛

    Comment by Meleagris gallopavo — Saturday, 30 May, 2009 @ 09:08

  2. It was not my intent to append that jaundiced, hydrocephalic face to the end of my previous comment. Apologies.

    Comment by Meleagris gallopavo — Saturday, 30 May, 2009 @ 09:10

  3. I didn’t claim she was racially motivated in her legal work; I claimed that Obama’s nomination was motivated by the fact that she is a Hispanic woman. Yes, the thinking was exactly “Whoops, too many white men, better find a Hispanic woman,” and you’re kidding yourself if you think otherwise. There are many accomplished and brilliant judges in the country that would “deserve” a seat on the Court sooner than Sotomayor. That she is at least a competent judge doesn’t change that reality. It’s not the first time this has happened, either: Clarence Thomas was appointed because he was black, no question about it (incidentally, Thomas had less impressive credentials than Sotomayor at the time of his nomination, but he has since justified Bush’s confidence in him). And what is this quote from Obama’s nomination speech supposed to mean?

    “And when Sonia Sotomayor ascends those marble steps to assume her seat on the highest court of the land, America will have taken another important step towards realizing the ideal that is etched above its entrance: Equal justice under the law.”

    I can’t imagine what the “important step” is if it’s not having the first Hispanic woman on the court.

    On an unrelated note, I have long wished that Ben Franklin’s efforts to canonize Meleagris gallopavo as our national bird had been successful.

    Comment by Strix nebulosa — Sunday, 31 May, 2009 @ 20:08

  4. I should clarify my position. I do not think Sotomayor is a racist or would reach certain outcomes in cases based purely on the race of the litigants. I do think that her comments make clear that she considers the policy outcomes of her decisions when engaging in legal interpretation, and that the effect of her decisions on different racial groups (as informed by her identity as a Latina) is appropriate to consider. I do not agree that such outcome-based judging is appropriate. Appellate decisions should start and end with interpretation and application of the legal text at issue.

    Comment by Strix nebulosa — Monday, 01 June, 2009 @ 05:12

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