BY SUSAN ESTRICH
Sonia Sotomayor makes me smile. Maybe I should have a more highfalutin response to the back-and-forth between the judge and the senators. But why?
They know [at least the smart ones do] and she certainly knows that while most of the cases that come before the court can be decided without regard to anything but the statutes, the precedents and the logic of the case itself, the ones that split the court down the middle and change history can’t. Simple as that.
Did the Founding Fathers have a view about the limits of executive power to collect private information after a terrorist attack? Even if they did [Could they have foreseen not only the phone but the Internet?], are you really going to consider nothing else in deciding the issue?
But no one is going to catch Sotomayor walking into that trap. Over and over, she keeps telling these senators what they can’t dispute: Her judicial philosophy is to apply the law and not make it; she respects precedent, keeps an open mind, does not prejudge. Do Latina women have wisdom and experience the average white guy can’t imagine, the kind of experience that may give them wisdom in making decisions that affect people’s lives? You won’t catch the judge saying that, even though she once did. No, she just meant to inspire young women.
Sotomayor makes me smile because she is so smart, way too smart to be caught up in trying to teach these guys the limits of original intent, or how experience shapes judgment, or why “big” cases can’t be decided just by consulting the words of the Constitution. Supreme Court confirmation hearings – regardless of what the anchors tell you – are not an opportunity for the country to learn how judges judge, and especially how Supreme Court justices do. They are an occasion for the opposition party to try to trip up the nominee into saying something that they can use against them politically.
Sotomayor is not going to melt down. Not even close.
But confirmation hearings can, and should, also be an opportunity to celebrate for those who support the nominee and elected the man who picked her. Nothing makes me angrier than when people argue that it doesn’t make a difference who wins elections, even presidential elections. I take delight in the accomplishments of my students, whatever party they choose to support or join. It’s the ones who don’t even see the choice as worth making that upset me.
Sotomayor would not be sitting where she is in any other country. Her success makes me proud to be an American, proud that we are the country where a hardworking woman can raise her daughter to be a justice, and then sit behind her to share in the joy of that accomplishment. Her success makes me proud to be a woman of a certain age, part of the generation that put our heads down, pushed through those doors and then, as the judge has done, turned to offer our hands to those who came after us.
No one ever votes on the Supreme Court as an issue. When you hear the candidate saying that the next election will determine who sits on the court, you know he’s in trouble. But the fact remains that Sotomayor would also not be sitting where she is if a Republican were in the White House.
Elections do matter. Barack Obama won, and Sonia Sotomayor will sit on the Supreme Court. Why shouldn’t I smile?
– Susan Estrich’s columns appear regularly in The Oklahoma Observer