Sounding Sotomayor

Posted July 13, 2009, at 5:54 p.m.

Senate Republicans and Democrats tipped their hands Monday as the confirmation hearings for Supreme Court nominee Sonia Sotomayor began. The GOP strategy is to argue that Ms. Sotomayor will be swayed by her views of the world as a woman and a Hispanic. Before being nominated, she made comments that implied as much. Democrats counter that it is her very life story, rising from New York City as the daughter of a Puerto Rican immigrant to Princeton, Yale Law School and finally the federal court, that qualifies her to weigh the questions the court will consider in the coming years.

As South Carolina Sen. Lindsay Graham told her Monday, “Unless you have a complete meltdown, you’re going to get confirmed,” because Democrats have a 60-vote majority in the Senate. That outcome may be a given, but the sway the opposing partisan arguments have on the American public is not.

If Republicans truly believe that a woman — Ms. Sotomayor would be only the third to be seated on the high court — does not view the world differently from a man, then the party needs to send Sen. Graham and his male colleagues home to run that view by their wives, sisters and daughters. Cases that relate to workplace economic parity between the genders, the needs of pregnant women and mothers of young children, and sexual crimes always will be viewed differently by women.

The implication of the Republican stance is that the perspective of white men of middle or higher economic class is no perspective at all, but rather a clear view of the world. That’s like a Mississippi farmer telling a Down East lobsterman that he has the funny way of pronouncing words.

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The Supreme Court is not a political body, though former justices have revealed that its members are aware of the political climate and are influenced by it. Nor is the court an advocacy entity, seeking to right wrongs, yet its decisions often do just that. And its members should not be chosen the way actors are cast for a movie, based on how they complement their colleagues or spark tension among them.

The court’s primary role is to weigh cases against the Constitution. Yet the nine justices are not technicians determining whether a lower court decision matches the Constitution’s intent, the way a forensic scientist determines whether a suspect’s DNA matches that left at the crime scene. Their rulings are very much a human calculation.

While speaking at Husson College in 2007, NPR legal corresponded Nina Totenberg recounted how the late Supreme Court Justice Lewis Powell told her that when he was a lawyer, his 19-year-old black messenger sought his help one night. The man’s pregnant girlfriend had tried to give her-self an abortion, which was illegal at the time. Despite the help, the woman died. That experience, he said, shaped the justice’s view on reproductive matters.

Ms. Sotomayor will interpret the Constitution, and she will do it as a Hispanic woman. How much that colors her decisions has no more or less relevance than the African-American background of Justice Clarence Thomas or the Italian-American background of Antonin Scalia.

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