Now it is a phenomenal story to see someone like Sotomayor overcome all she has and a testament to how far this nation has come, but how is her background a qualification for the Court?
George Will (without a SINGLE baseball reference, seriously) discussed in the WaPo today (and I think I agree) why identity jurisprudence is an approach that is antithetical to our conception of the rule of law. If the application of the law changes depending on your perspective, then is it even impartial anymore? Is this jurisprudential approach antithetical to the Equal Protection Clause? I think it is. And this is what has bothered me about this nomination, not the fact that she's going to take a liberal approach to issues or even to constitutional interpretation.
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Let me pose a question: has there ever been a judge on the United States Supreme Court (from day #1, when the Founding Fathers could've stepped in and said, "No, that's not what we intended") whose personal perspective / interpretation / life experience has not influenced his or her vote / opinion? I wager no, and that it's an impossible trait for human jurors. Short of computerized, robot jurists, I think this "debate" is totally pointless (unless you can identify some pattern of preexisting bias in her past decisions that fly in the face of modern jurisprudence and social norms that would simply make her unfit to be Justice).
ReplyDelete*Justice / a Justice...sorry, didn't edit.
ReplyDeleteTotally true. But are we pushing the line from admitting subjectivity is unavoidable to endorsing it as a good thing in judicial decisionmaking?
ReplyDeleteOne issue I have with this line of argument is that it assumes that Sotomayor was chosen solely on the basis of her story and personal experiences, which I think would be a ridiculous claim on its face. She has the typical, stellar educational background that a justice usually has (which I think you could argue is shouldn't be necessary, which is another argument). From all accounts, she has had a long and distinguished career on the bench and has been confirmed twice before by the Senate.
ReplyDeleteThe interesting thing to me is that when John Roberts and Samuel Alito were nominated you got the same biographical stories about where they had come from and how their worldviews had been shaped, but no one ever questioned that they were chosen because they had distinguished themselves professionally.
Whoops. The post above was written by Professor Z.
ReplyDeleteThis post was actually written by Mama Z:
ReplyDeleteFirstly, I do think there is some sexism here. I will post more on that later. I do agree with what Professor Z said (under my name) that no one questioned one's background or identity when it was Alito, whose grandparents were immigrants. (That could just be because he is Italian, and we're the awesome-ist.)
Secondly, I do believe diversity on the court is a good thing. I believe that one's background is incredibly important in understanding the law. As law students, we often ask ourselves if judges and justices in any way understand what it means to be "reasonable." Judges and justices cannot avoid utilizing their own experiences to interpret the law, and diverse points of view only assist in making just decisions. I believe that diversity in gender and race can be as important as diversity in political or jurisprudential philosophy.
The President's decision to appoint a Latina is no more important than would be a decision to appoint a liberal. The difference is simply that we assume without question he will appoint a liberal, but we have not yet reached the point at which the appointment of a Latina is expected of anyone. It is such a novelty that we question motives. Perhaps the motives should be questioned, but in my opinion, the motives do not matter as long as the appointee is qualified and can appropriately apply the law, regardless of her background.