Emily Badger: Get a Life? Not If You Want to Be One of the Nine





[Emily Badger is a freelance writer living in Atlanta who has contributed to The New York Times, International Herald Tribune and Christian Science Monitor. She previously covered college sports for the Orlando Sentinel and lived and reported in France.]

Sonia Sotomayor's critics and backers have spent the last two weeks parsing one line of a speech she gave in 2001 during a conference at Berkeley on Latino representation on the judiciary."I would hope," she said,"that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The quote prompted cannon fire from Rush Limbaugh and Newt Gingrich, who equated the sentiment with a kind of racism (although Gingrich later dialed back his rhetoric). Equally telling has been the reaction to the reaction — the White House and Sotomayor's Democratic supporters have backtracked on the seemingly simple idea that what she would bring to the Supreme Court is not just her Yale law degree, but also her Bronx-Puerto Rican life narrative.

"What she said was, of course, one's life experience shapes who you are, but ultimately and completely — and she used those words 'ultimately and completely' — as a judge you follow the law," Sen. Patrick Leahy, chairman of the Judiciary Committee, recounted to the media after he met with Sotomayor last week."There's only one law. And she said 'ultimately and completely,' a judge has to follow the law no matter what their upbringing has been."

Leahy's comments, as much as Limbaugh's, put life experience and faithfulness to the law on opposite ends of a spectrum of judicial influence, suggesting a judge can draw from one or the other, but not both. In fact the opposite view — that justices inherently sift cases through their varying worldviews — prevailed throughout the last century (and even in a Supreme Court decision this week), prompting a couple of questions ahead of Sotomayor's confirmation hearings this summer:

Why is this idea suddenly so thorny? And don't we want a Supreme Court staffed with jurists who have a common deference to the Constitution but a varying set of backgrounds from which to approach it?

From the 1880s until about 2000, said Harvard law professor and Supreme Court historian Mark Tushnet, the idea that a judge's background would influence how he or she approached cases — and that this was desirable — was conventional wisdom. The court for years even followed a kind of enforced diversity, drawing justices from the geographic regions that captured some of the country's biggest disagreements, with plantation owners in the South, industrialists in the Northeast and ranchers to the West.

Other types of biography weighed heavily, too. Michal Belknap, a historian and law professor at California Western School of Law, is writing a biography of Justice Tom Clark, who was appointed to the court in 1949 after practicing oil and gas law.

"As far as I'm aware," Belknap said,"nobody ever asked him whether his background as an oil and gas lawyer would influence his thinking in oil and gas cases. The reason they gave them to him was that he was the only person who could understand those cases."

That a similar concept would apply now to a justice with a personal understanding of issues of immigration, racism or poverty —"It seems to me like something that's fairly obvious," Belknap said."And probably the only difference between (Sotomayor) and other people is she actually said in a fairly prominent public context something that I think most lawyers, judges and law professors would think is obvious and self-evidently true."

The idea that justices should mechanically apply the law through a lens in no way colored by their own experience Tushnet chalks up to a successful conservative political strategy. Opponents say the view ignores two complications: Language is inherently ambiguous, and if the Constitution or statutes held indisputable answers to these cases, they wouldn't be in the Supreme Court in the first place.

Lani Guinier, a Harvard law professor, also sets the shift inside a broader debate around originalism, the idea that the Constitution is a fixed document judges must read through the eyes of its creators and not with a view toward contemporary society.

"The idea of originalism makes the notion of a judge relying on anything other than the historical record verboten," she said."And in fact judges who interpret the Constitution in conjunction with anything else other than the historical record are called judicial activists. What you're really seeing here is the morphing of that debate on judicial activism."

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