Getting Sotomayor Wrong

Even if you don't have a strong opinion about Judge Sonia Sotomayor's fitness to serve as a Justice on the Supreme Court, you should be disappointed with the tone of the discussion. She is incredibly competent with an excellent track record of professional, intellectual achievement. So why can't the country have a substantive discussion? Or do you really think it's fruitful for the republic to spend the week debating how racist it is to mention your ethnic heritage? Newt Gingrich can say what he wants - hyperbole is his way of making a point - but I would hope for more from White House spokesman Robert Gibbs dodging a substantive defense. Here's Dana Milbank's summary:

The questioning had drawn the interest of ABC News's Jake Tapper, who said he had read the entire speech but was still "wondering if you can explain what she meant."

Gibbs ducked again, telling the reporters that the speech was "about the unique experiences that she has" and again recommending people "look at her whole record" in its "totality."

"You're not spinning us," Tapper complained. "We're asking you, spin us! Explain what you think she meant."

My suggested spin: It would seem her personal success is a testament to meritocracy, and we should be pleased and hopeful she will carefully guard America's meritocracy more than someone without that experience, frankly. Her success in life based on merit speaks more powerfully to the advantage of her subjective experience than accusations of her gender and ethnicity.

The slippery issue here is subjectivity versus the ideal of blind (objective) justice. The question Senators should be asking is whether any nominee's subjective experience taints their perspective in way that reinforces the core values of the Constitution or clashes with those values. Of course subjective experience matters! Now tell us why. Seems to me ethnic or gender favoritism is a pretty clear violation of basic Constitutional law. But I doubt that's the outcome of Sotomayor's experience, or what she has ever tried to convey. Do you really think she never met any poor white kids in public housing? No isolated, alienated boys? Being on guard for alienation is exactly what we want in blindly just society.

Sadly, too many smart folks are defaulting to the circular logic of subjectivity supreme. Objectivity is impossible, an illusion, an excuse for neo-imperialism, blah blah blah. Even a smart guy like Joel Achenbach, self-declared uber-geek, rational scientisticy guy, has fallen into this gaudy trap. Read this:

You can argue these things round or square, but it seems to me that, in most instances, interpreting the Constitution is not like interpreting a mathematical equation. The Constitution says nothing of stem cells, affirmative action, sexting, gay marriage. The cases that reach the Supreme Court are the hardest ones to solve, where there's no indisputable answer, and where even the sharpest legal minds, sworn to uphold the Constitution, will split 5-4 on what should be the law of the land. A justice's personal background shouldn't dominate the analysis, but neither should it be irrelevant.

Whoa! Flip this argument around and realize how silly it is ... Imagine if we lived in some bizarre alternate universe and we were discussing a nominee to head NASA, and Joel had written this:

... it seems to me that, normally, commanding astronautic exploration is not like the rigorous rules of grammar and spelling. The numbers 0 through 9 say nothing about gravity, radiation, alien life, or the creation of the universe. The decisions facing the nation's top astronaut are beyond mere logic, let alone cost-benefit analysis. The bravery and confidence-inspiring square jaw of the NASA Administrator matter far more than egghead reasoning.

Let's stop pretending the Constitution is just words. We need to care about what any nominee's reasoning is on the existence of a privacy penumbra. Hard objective argument. How about intellectual property rights, monopoly, contract law, federalism, commerce clause ...? Talk to me about the 10th amendment.

Yawn. "How do you feel, Sonia?"

Comments

[Corey]

Republicans can't have a conversation, though, about Sotomayor's actual legal qualifications, written opinions, or views on the role of the state because there's no evidence that any of those things are remotely anti-establishment. There's just not much for Republicans to disagree with there.

So, in order to hand the President a defeat, they have to impugn her ethnicity and gender, call her a "radical liberal" and "judicial activist" without any cause, etc. All this, even though they'd never in a million years object to a Catholic or Jewish nominee citing his religion as an influence, or an Irish-American candidate citing his cultural upbringing as influencing his views on policy, etc. I agree there should be a substantive, tough discussion on how to apply the Constitution to the challenges of modern America, but we're not likely to get it with this opposition.

[emo]

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