Maria – Blondie
Aaron & Maria – American Analog Set
Ave Maria – Johann Sebastian Bach
So it’s Sotomayor. I’m pretty happy about this. I won’t claim to know anything about her, but the folks that I trust on this sort of thing seem to think she’s about as good as we might expect – likely to be a modest push left from Souter. We’re not getting back to the Warren court any time soon, but there’s no reason to expect Sotomayor to be anything but a solid liberal judge.
I’ve written a couple things about the Court recently, which I don’t want to belabor too much. But I will say that I remain irritated with folks who are shocked (shocked!) that Republicans are proposing to try to block her appointment. They’re the opposition. They don’t like her positions, so they’re going to try to block her. That’s what happens. It won’t work, and that’ll be the end of it.
And, going back to my discussion of “identity politics” – I just thought it was worth calling out a few folks who had reactions today which left a lot to be desired.
First, there’s Randall Kennedy, who says “The focus on biography–who one’s parents were, difficulties surmounted, social distance traveled–has become a terrible distraction.” Which would be relevant if we were discussing an abstract legal philosophy to the bench. But since we’re talking about installing a person (into a lifetime position, I might add), it seems like “biography” might matter just a little bit. There are real people in those robes, and how they come to decisions is part of the qualifications for the office. Appointing someone because it’s a good ‘story’ would be a bad practice, but appointing someone because their life experiences give them the capacity to render better decisions very much does matter.
And then there’s Alan Dershowitz, who (unsurprisingly) seems to have no capacity for recognizing gray areas:
We used to have a “Jewish seat,” a “Catholic seat,” a “Black seat,” and a “woman’s seat.” But what about Asians? Moreover, there are different kinds of Asians. Chinese Americans have little in common with Japanese Americans, though they do share a long history of enmity and distrust. It would be as if there were “a Semitic seat,” and the President had to decide who best to fill it with: a Hebrew semite or an Arab semite?
So enough with diversity and representatives on the Supreme Court. No one should be excluded because of race, gender, ethnicity, or other invidious factors, as too many groups were for too many years. But nor should anyone be selected based on such factors, lest the person see him or herself as “representing” that constituency on the court (as congressmen properly do).
The only bases for selection should be legally relevant criteria of excellence. If those criteria are fairly applied, there will always be a diverse court, especially since the legal profession today has far fewer barriers to success.
Professor Dershowitz really has done a good job of devastating that arguments of all those folks who want to establish a quota system for Supreme Court appointments. Meanwhile, back here in the real world, we recognize A) that there are congresswomen these days, too B) that there’s a lot of space between having a “Jewish seat” and believing that diversity is a meaningful question in deciding among many eminently qualified candidates and C) that a completely abstract notion of “legally relevant criteria” doesn’t offer a whole lot of hope for “fair application.”
Bear in mind that these two people are writing in FAVOR of Sotomayor. It just goes to show how much there is invested in the idea that whiteness and maleness are ‘normal’ and do not constitute ‘identity categories’ which might inspire favorable treatment.
I’m not going to get into the embarrassment of the opponents like Huckabee calling her “Maria” (c’mon Mike) or not-at-all subtly implying that her status as a Latina will make her constitutionally incapable of rendering “fair” judgments. If those folks want to acknowledge that John Roberts is equally incapacitated by his racial and gender identity, then we can talk.
I do have some more complex things I’ve been thinking regarding the idea of ‘feelings’ being part of the judge’s decision-making process, but it gets into some academic work I’ve been doing and may be a little too esoteric to actually write about here. If I find myself in the mood, I may post that in the next couple days.