The Anti-Empire Report

Senate hearings to question a nominee for the Supreme Court are a supreme bore. The sine qua non for President Obama choosing Sonia Sotomayor appears to be that she’s a woman with a Hispanic background. A LATINA! How often that word was used by her supporters. She would be the first LATINA on the Supreme Court! Dios mio!

sonia-sotomayorWho gives a damn? All anyone should care about are her social and political opinions. Justice Clarence Thomas is a black man. A BLACK MAN! And he’s as conservative as they come.

Supreme Court nominees, of all political stripes, typically feel obliged to pretend that their social and political leanings don’t enter into their judicial opinions. But everyone knows this is rubbish. During her Senate hearing, Sotomayor declared: “It’s not the heart that compels conclusions in cases. It’s the law.”

The former Chief Justice of the Supreme Court, Charles Evan Hughes, would not agree with her. “At the constitutional level where we work,” he said, “ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”[1]

By Sotomayor’s own account, which echos news reports, she was not asked about her position on abortion by either President Obama or his staff. But what if she is actually anti-abortion? What if she turns out to be the swing vote that overturns Roe vs. Wade?

What if she’s a proud admirer of the American Empire and its perpetual wars? American dissidents, civilian and military, may depend on her vote for their freedom from imprisonment.

What does she think about the “War on Terror”? The civil liberties and freedom from torture of various Americans and foreigners may depend on her attitude. In his 2007 trial, Jose Padilla, an American citizen, was found guilty of aiding terrorists. “The jury did seem to be an oddly cohesive group,” the Washington Post reported. “On the last day of trial before the Fourth of July holiday, jurors arranged to dress in outfits so that each row in the jury box was its own patriotic color — red, white or blue.”[2] No one dared to question this blatant display of patriotism in the courtroom; neither the defense attorney, nor the prosecutor, nor the judge. How can we continue to pretend that people’s legal positions exist independently of their political sentiments?

In the 2000 Supreme Court decision stopping the presidential electoral count in Florida, giving the election to George W. Bush, did the politics of the five most conservative justices play a role in the 5 to 4 decision? Of course. Judges are essentially politicians in black robes. But should we care? Don’t ask, don’t tell. Sonia Sotomayor is a LATINA!

Given the large Democratic majority in the Senate, Sotomayor was in very little danger of being rejected. She could have openly and proudly expressed her social and political positions — whatever they may be — and the Democratic senators could have done the same. How refreshing, maybe even educational if a discussion ensued. Instead it was just another political appointment by a president determined to not offend anyone if he can help it, and another tiresome ritual hearing. The Republican senators were much less shy about revealing how they actually felt about important issues.

It didn’t have to be that way. As Rabbi Michael Lerner of Tikkun.org pointed out during the hearings: “Democratic Senators could use their time to ask questions and make statements that explain why a liberal or progressive worldview is precisely what is needed on the Supreme Court.”

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[1]  William O. Douglas, The Court Years, 1939-1975 (1980), p.8
[2]  Washington Post, August 17, 2007