One of the most important reasons for breaking the hegemony of rightwing Republicanism as represented by the eight-year reign of Bush-Cheney was to prevent a total take-over of the Supreme Court and federal judiciary by the conservative forces. Decisions rendered by the Supreme Court and federal judiciary generally extend far beyond the tenure of Presidents. However, by appointing Justices to the Courts a President can put his philosophical stamp and that of his political party on the nation for generations. An important mission of the conservatives during their rise to ascendancy has been to undo or reverse the gains of the civil rights/human rights movements of the last half century. No one took this mission more seriously than George W. Bush did. The New York Times described the number of rightwing judges nominated by George Bush as a “conveyor belt” whose sheer numbers would result in control of the federal judiciary.
If John McCain had won the presidency, the conservatives would have solidified their dominance of the Courts and declared “mission accomplished.” This would have been a devastating blow for the liberal-progressive agenda of creating a more expansive, inclusive, just and humane society. In this regard, the election of any of the major Democratic contenders was preferable to any of the Republican candidates. Fortunately, it was time for Barack Hussein Obama to make history as the first Black President of the United States.
It is fortuitous that early in his first term President Obama was presented with an opportunity to nominate a Justice to the Supreme Court to blunt and reverse the tide of conservative jurisprudence that has sanctioned shredding the culture of rights won through generations of struggle. In that regard, the President was correct in principle and in his political judgment to nominate Judge Sonia Sotomayor, a Latina, to be the next Justice to the Supreme Court. Given the long history of contributions of Latinos to American history and culture and the fact that they are the largest and fastest growing minority in this country, it was imperative that a Latino be appointed to sit on the highest Court in the land. Moreover, women constitute more than 50% of the population of this country. It is a disgrace that there is only one female Justice on the Supreme Court. It was a masterstroke to nominate a woman and person of color to sit on the Court. President Obama was also courageous and correct to assert that judges on the Supreme Court should have real life experiences that enable them to have empathy for the circumstances, plight and struggles of ordinary people in our society. Politically, the Obama team was correct to take into consideration that 67% of Latinos voted for him in the historic 2008 presidential election. What better way to cement Latinos into a new Democratic coalition for change than to appoint the first Latino to the Supreme Court.
Precisely because the stakes are so high, none of this is sitting well with a disoriented, disorganized and defeated Republican Party that is once again being frustrated by the amazing new kid on the block. They are painfully aware that with President Obama in the White House their dream of institutionalizing their reactionary vision for America is now in jeopardy. Though her record is sketchy on some matters of crucial importance to liberals and progressives, it is highly unlikely that President Obama would nominate someone to the Supreme Court who did not substantially agree with his judicial philosophy on critical issues affecting women, minorities and labor. Obama has the Republicans between the proverbial “rock and a hard place.” If they attack Judge Sotomayor as being too liberal or label her a “judicial activist,” they risk alienating and losing the Latino vote for the near future.
Nonetheless, some rabid rightwing conservatives are so delirious that they are willing to risk all to block Judge Sotomayor’s nomination. Newt Gingrich and Rush Limbaugh have gone so far as to call her a racist for commenting at a conference that “I would hope that a wise Latina woman with the richness of her experience would more often than not reach better conclusions than a white male who hasn’t lived that life.” Other Republicans are accusing Obama of resurrecting identity politics by nominating a judge who would have the audacity to say such a thing. Another line of attack is developing over Judge Sotomayor’s apparent willingness to consider race when adjudicating cases involving discrimination or racial grievances.
Any right-thinking person would immediately understand that one’s life experiences might well influence how you see the world and that this is important when considering cases of people who have been excluded, locked or left out because of race, ethnicity, culture, religion or sexual orientation. Contrary to claims of the “strict constructionists,” there is nothing sacrosanct or inherently inflexible about the Constitution. Its tenets and provisions are a basic framework that is open to interpretation. Thus, how a judge interprets the Constitution is very much a function of one’s experiences, beliefs and the socio-economic conditions of the time. If it were otherwise, then Chief Justice Roger B. Taney’s pronouncement in the Dred Scott Case in which he wrote that Black people “had no rights which the white man was bound to respect," or the doctrine of “separate but equal” as sanctioned by Plessy v. Ferguson would still be the law of the land. Times change, people change, circumstances change and so do interpretations of the Constitution of the United States.
The conservatives know this all too well. They are frantic because the confirmation of Judge Sonia Sotomayor will mark the death knell of their restrictive, reactionary race-neutral/color blind judicial machinations in this era. Race, gender, class and sexual orientation still matter in America as barriers to inclusion and equitable distribution of opportunity and resources. A “wise Latina” on the Supreme Court will be aware of these factors and therefore can change the course of the conversation and history!
Dr. Ron Daniels is President of the Institute of the Black World 21st Century and Distinguished Lecturer at York College City University of New York. He is the host of Night Talk, Wednesday evenings on WBAI 99.5 FM, Pacifica New York. His articles and essays also appear on the IBW website www.ibw21.org and www.northstarnews.com. He can be reached via email at email@example.com