When Supreme Court Justice David Souter announced that he intended to step down from the bench at the end of this year's Supreme Court term, there was a brief pause, a collective gathering in of air, followed by a frenzy of speculation that did not end until President Obama announced his selection of Judge Sonia Sotomayor as nominee. During the days of guesswork and anticipation that preceded Obama's nomination of Sotomayor, political odds-makers seemed to favor the selection of a woman, with most pundits leaning toward a woman of color, to replace Justice Souter. Everyone was on pins and needles, and who could blame us? During the 2008 elections, the that the next President would most likely have the opportunity to nominate more than one Supreme Court justice and shape the political climate of the court for decades to come was one of the key areas of concern.
Pro-choice groups hoped for a nominee with a judicial record supporting a woman's right to choose. Anti-choice groups busily combed through the records of likely nominees looking for ammunition to block a pro-choice nominee. And everyone seemed to agree that the big issue on the table during the nomination process was going to be abortion.
So, when President Obama nominated Judge Sotomayor many people were surprised to see the nominee's own race and gender, not her position on abortion, emerge as the key battleground issues.
I was not surprised, nor do I think the emergence of race and gender as issues during this pre-confirmation period means that abortion is off the table. To the contrary, abortion is one of the issues being debated by proxy. Charges that reverse racism and sexism might have an impact on Judge Sotomayor's decision making ability are really charges that she might decide cases concerning abortion rights, discrimination, and immigration rights differently than conservatives would like.
America did not miraculously become a post-racial society with the election of our first President of color and the storm over Judge Sotomayor's nomination is just one example of that. The issue at hand is not whether Sotomayor's claim 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" translates into her being unable to rule without prejudice in favor of people of color. A review of Sotomayor's judicial record shows that she does not reflexively favor any group. In 96 race-related cases, she rejected discrimination claims by an approximate margin of 8 to 1.
The issue is also not whether Sotomayor's views on the role of gender in judicial matters--interpreted for the most part through that claim about what a "wise" Latina woman would do--will somehow translate into her ruling in favor of women and reproductive choice regardless of the merits of individual cases. As Jill Filipovic explores in her piece Fair and Balanced: Weighing Sotomayor's Opinions, "Sotomayor's only major abortion-related case was Center for Reproductive Law and Policy v. Bush - and her conclusion isn't going to warm the hearts of reproductive rights activists." The Center for Reproductive Law and Policy lost that case, which allowed the Global Gag Rule to remain in place until President Obama took office. Sotomayor has also ruled in favor of anti-abortion protestors in not one but two civil rights cases.
Jeremy Levitt, in a piece in the Orlando Sentinel (Sotomayor: Race-baiting and the unpatriotic right), asserts that Sotomayor has forwarded the basic premise that the gender, national origin and personal experiences impact a judge's decisions. Levitt, Associate Dean for International Programs and a distinguished professor of international law at Florida A&M University College of Law in Orlando, questions whether that assertion is really a "novel revelation" and he flat out rejects the idea that making that assertion is a public display of racism.
Despite Sotomayor's judicial record on race-related discrimination cases, she has been charged with the task of putting Republican Senators at ease and calming their fears that a wise Latina woman would rule with her heritage and gender in mind rather than the law. So even with pro-choice organizations seeking clarification and assurances from the White House that Sotomayor will uphold Roe and protect reproductive rights, Judge Sotomayor is being painted as a pro-choice liberal activist judge by conservative groups and bloggers.
That's because the overt questioning of Sotomayor's ability to judge fairly because she is a Latina has little to do with her judicial record. Conservative opponents of Judge Sotomayor's nomination fear that she will shift once appointed to the bench, much like they believe Justice Souter did, and they have latched on to her "wise Latina woman" statements as evidence that she is likely to shift toward the left. Another liberal justice on the Supreme Court would do more than maintain the status quo; it would make the next nomination a potential game changer and we should have no doubt that the game being played is over a woman's right to choose.
Judge Sotomayor now faces opposition that appears to agree with her premise that gender, national origin and personal experiences impact a judge's decisions. Conservatives not only validate the premise of her statement through their insistence that judges be "strict constructionists" with clear ties to the Republican party, they also validate it through their over the top condemnation of Sotomayor's assertion that a wise Latina woman would make different decisions that a white man. Beneath the surface is their acceptance that Judge Sotomayor is right; that a woman of color, empowered through the richness of her heritage, would reach a different decision than a white man. They ought to know, since they bet on that logic proving true with both so-called "strict constructionist" conservative judges they welcomed onto the Supreme Court during the Bush Administration. During the pre-confirmation period for Justice Roberts and Justice Alito, pro-choice activists mounted opposition because we knew that one person's stare decisis is another person's debatable precedent. Now conservatives opposing Judge Sotomayor are demonstrating that they know that one person's "better conclusion" is another person's judicial nightmare.
