When introducing his choice for the next Supreme Court justice, President Barack Obama said of judge Sonia Sotomayor, “Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed.”
What could Obama possibly mean by “varied experience?” Sotomayor herself once explained, “I would hope 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.”
Obama admittedly chose Sotomayor in part because of her “varied experience.” Sotomayor finds much worth in the “richness of her experiences” as a “wise Latina woman.” Given both statements, and regardless of her voting record, legal history, and any other bit of jurisprudence, Americans should hope that some way, somehow, this Hispanic woman never makes it to the Supreme Court.
Choosing judicial appointees based on race, sex, or religion is nothing new. Louis Brandeis became the first Jew appointed to the Supreme Court in 1916. Thurgood Marshall became the first black justice in 1967. Sandra Day O’Connor, the first woman, in 1981. Each were considered milestones at the time and no doubt, their variation from the white, male Protestant norm on the Supreme Court were primary reasons for their selection. Each also participated in major decision making that could rightly be described as “liberal,” in which by allegedly injecting their own politics into high court decisions and not strictly adhering to the constitution, they earned the label of being “activist judges.”
While judges have had their way with the Constitution for years, ravaging and redefining a document that is supposed to be the very basis of American law and liberty, the argument continues between conservative “originalists,” who believe the Constitution means what it says with no, ifs, ands, or buts, and liberal advocates of a “living document,” in which the Constitution is open to whimsical, political interpretation. Conservatives argue that judges are supposed to interpret the law as it exists, not create new laws via their own interpretation. Liberals argue that “originalist” interpretations are inherently too limited because they only include the opinions of the white, Protestant men who wrote the Constitution, noting that such men often had no problem with slavery, segregation, and other injustices throughout America’s history.
While “living document” advocates are not entirely without merit, their argument ultimately means the law is whatever a judge says it is, the Constitution be damned. But if the Constitution is a “living document” open to broad interpretation, court rulings on gun rights, eminent domain, abortion, gay marriage, and other hot button issues are not to be found in the 2nd, 5th, 9th, and 10th amendments, but the “varied” and “richness of experience” of judges like Sotomayor.
Neither she nor Obama would describe her possible tenure on the court in such terms, but the obvious subtext is that Sotomayor’s ethnicity and gender will serve as a primary pretext for every future decision she makes. By virtue of their position, liberal “living document” proponents demand that identity and political ideology should mold law, not merely interpret it, in the name of social justice. Or as Obama said in a 2001 radio interview, “The Constitution is a charter of negative liberties. … It says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”
If the Constitution doesn’t say explicitly “what the federal or the state government must do on your behalf,” that is pretty good indication that the Founders never intended for it to do much of anything. But Obama says government must do more. Who decides what it must do? Unelected Supreme Court justices like Sotomayor who have the “empathy” and “wisdom” to know what’s best for all of us, despite, by Obama’s own admission, lacking the constitutional authority to implement a personal agenda.
As an “originalist” myself, this issue goes beyond Left and Right, and I have opposed proposals from conservatives like a constitutional amendment to ban gay marriage or even federal drug laws, precisely because the regulation of marriage and drugs was never intended to be in the purview of the U.S. government and undermines the Founders’ concept of federalism. Unlike Sotomayor, I believe minorities and women are entirely capable of being faithful to a document written exclusively by white men.
But if I’m wrong, and Sotomayor’s assertion rings true — that due to their unique experiences, minorities and women will interpret the law differently than their white, male counterparts — I see no good reason for anyone loyal to the original intent of the U.S. Constitution to support the appointment of any minority or woman to the Supreme Court ever again.