After 15 long years, a Democrat in the oval office finally has the opportunity to make a Supreme Court nomination. Clinton had two successful nominations, Ruth Bader Ginsburg and Stephen Breyer who were seated on the Court in 1993 and 1994 respectively. Presently, 7 of the 9 Justices were nominated by Republicans.
President Obama made an excellent choice in Sonia Sotomayor on a number of levels, but I’d mainly like to look at the issue of diversity – and if you think diversity does not matter, let me try to convince you that it does.
Consider the current composition of the Supreme Court: 8 of the 9 are male. With only 1 female on the Court, Justice Ginsberg, who is battling cancer and may have to step down in the immediate future, women are not adequately represented, given that they make up 50.9% of the population in the U.S. according to the latest Census data. Sotomayor is the first Hispanic ever to be nominated. And it is about time. Projections indicate that by 2010, Hispanics will make up 15.5% of the U.S. population.
The racial and gender composition of the court is important and changes the court dynamic. The New York Times addresses the impact minority judges have had on the Supreme Court from Justice Thurgood Marshall, the first black member to Justice Sandra Day O’Connor, the first woman. Diversity brings ideological difference, which is critical for healthy deliberation. There is more than one way to interpret the constitution. If there were only one way, we wouldn’t need the courts at all. We could just run the facts of a case through a computer program for an instant decision. No deliberation. No debate. Supreme Court justices are charged with the task of interpreting the constitution, a word that implies difference. And a functioning, dynamic democracy demands difference – otherwise we have no real democracy at all. Want total conformity, maybe you’d be happy in Fidel’s Cuba or Kim Jong-il’s North Korea.
I’ve heard the argument that we have to stay true to the constitution and to the wishes of our founding fathers; that the justices role is not to interpret, but to follow the constitution literally as written. This is the view of strict constitutionalism, which is at one end of the spectrum of judicial philosophy; judicial activism is at the other end, also known as legislating from the bench. According to Chris Weigant, this philosophy is misunderstood and is actually precisely what the framers of the constitution intended the Judicial branch to do as part of the system of checks and balances.
Sonia Sotomayor has the intellectual chops as a Princeton and Yale Law graduate to serve on the Court. Though if she had been a non-Ivy league graduate, she would even have more credibility in my eyes. I’d like a little more educational diversity on the court. Maybe in the next round.
Sotomayor also has had bipartisan support. Don’t forget that she was nominated by Bush 41 for the U.S. District Court and confirmed and later nominated by Clinton for the Second Circuit Court of Appeals and confirmed. Having been confirmed twice by the Senate, her Supreme Court confirmation hearing should go smoothly, but probably won’t.
Sotomayor. Learn to pronounce her name. She is going to be on the Supreme Court for a very long time and America will be the better for it.