By George F. Will
Wednesday, May 27, 2009
Responding to early 19th-century rumors that they drank excessively, the Supreme Court justices decided to drink nothing on conference days -- unless it was raining. At the next conference, Chief Justice John Marshall asked Joseph Story to scan the sky for signs of rain. When Story said he saw none, Marshall said: "Our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere -- let us refresh ourselves."
Americans have argued about the court's jurisdiction forever. They should not stop, especially now that the president has nominated U.S. Appeals Court Judge Sonia Sotomayor.
The 1987 fight over President Ronald Reagan's nomination of Robert Bork interred the tradition that the Senate, in evaluating judicial nominees, would not delve deeply into the nominee's jurisprudential thinking. Bork's defeat was unjust, but the new approach to confirmations was overdue, given the court's increasingly central role in American governance.
Before Sotomayor's confirmation hearings begin, the Supreme Court probably will overturn a ruling she supported on the 2nd Circuit -- the propriety of New Haven, Conn., canceling fire department promotions because there were no African Americans (although there was a Hispanic) among the 18 firemen the selection test made eligible for promotion. A three-judge panel of 2nd Circuit judges, including Sotomayor, affirmed a district court's dismissal of the firemen's complaint, doing so in a perfunctory and unpublished order that acknowledged none of the large constitutional questions involved.
Stuart Taylor of the National Journal calls this "a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both." Taylor says that when "the circuit's more conservative judges got wind of the case," they sought to have it reheard by the full 2nd Circuit. They failed but successfully argued that the Supreme Court should take the case.
Taylor has also noted this from a Sotomayor speech to a Hispanic group: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." Says Taylor, "Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: 'I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life' -- and had proceeded to speak of 'inherent physiological or cultural differences.' "
Her ethnicity aside, Sotomayor is a conventional choice. The court will remain composed entirely of former appellate court judges. And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented -- understood, empathized with -- only by persons of the same identity.
Democrats compounded confusion by thinking of the court as a representative institution. Such personalization of the judicial function subverts the rule of law.
In the 1978 Bakke case involving racial preferences in admissions to a California medical school, the opinion written by Justice Lewis Powell said race can be a "plus" factor for certain government-preferred minorities. But according to Powell's biographer (John Jeffries of the University of Virginia Law School), when the justices conferred on the case and Thurgood Marshall said such preferences would be needed for another century, Powell was "speechless." In 2003, affirming the constitutionality of racial preferences in university admissions, Sandra Day O'Connor, writing for the majority, said such preferences would be unnecessary in 25 years -- 19 years from now. How long does Sotomayor think they will be necessary? What are her criteria of necessity?
Perhaps Sotomayor subscribes to the Thurgood Marshall doctrine: "You do what you think is right and let the law catch up" (quoted in the Stanford Law Review, summer 1992). Does she think the figure of Justice should lift her blindfold, an emblem of impartiality, and be partial to certain categories of persons? A better jurisprudential doctrine was expressed by a certain Illinois state legislator 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."