Jennifer Foster: Sotomayor hearings offer little surprises

U.S. senators on the Judiciary Committee this week opened confirmation hearings for Supreme Court nominee Sonia Sotomayor and began their public review of her record.

Political pundits widely expected no surprises. After Robert Bork’s failed nomination in 1987, “advice and consent” came to mean something a lot different than it once did, and since then, hearings in the Judiciary Committee, unfortunately, have come to represent more than political theater.

All the buzz going into the hearings was how Sotomayor would explain her now-infamous “wise Latina” remark. I was one of the many watchers anxious to see how she would address it.
She brushed it aside, insisting that her remark was a “rhetorical device” which “failed;” it was not indicative, she said, of her beliefs about how race, gender and ethnicity affect judges’ abilities to be fair.

Republicans pressed her on the issue, repeating their oft-heard refrain that judges should “interpret” the law, not “make” the law, and that they should do so free of personal biases and emotion.

Democrats countered that if interpreting law was as simple as “calling balls and strikes,” as Chief Justice John Roberts so famously said in his confirmation hearings, then 5-4 rulings from the high court wouldn’t be so common.

As anyone who has ever spent any time on or around a baseball or softball diamond knows, the rule book might define the strike zone, but umpires have their own ideas – boy, do they have a lot of ideas – about where it is. So it is on the Supreme Court: 5-4 rulings are common. And given the increased political polarization in this country over the past 20 years, perhaps that’s fitting.

Judges on lower court benches naturally have less latitude in defining policy than justices on the Supreme Court. Whereas lower court judges spend much of their time interpreting state statutes alongside the Constitution, justices, many times, are interpreting the Constitution itself.

Liberal lawmakers who reject the “activist” label used by conservatives argue that it’s only right that the Constitution be viewed through modern eyes. After all, the Founders, for all their wisdom, didn’t count us all equal under the law. In fact, when it came to actually counting, a slave was counted only as a fraction of a person.

In that way, the Constitution has been a “living” document, and for the purposes of equality under the law, this is as it should be. The most famous case of an “activist” court, Brown v. Board of Education in 1955, was the single most important step to achieving racial equality that this nation had ever taken.

So the question, then, is not whether justices of the United States Supreme Court can exercise their own judgment when deciding cases and interpreting the Constitution. They do. It is whether nominees to that Court have the intelligence, experience, maturity and disposition to do so in a manner that is befitting of their responsibilities to American history and Americans themselves.

Which brings us back to Sotomayor and the “wise Latina” remark. Over the many opportunities she had to address the statement, she watered it down, diminished it and tried to explain it away.

She did not, however, retract it.

Her remark isn’t disturbing because she wouldn’t be in a position of considering personal beliefs on the high court.

It’s disturbing because she would.

Jennifer Foster is a political enthusiast who lives in Auburn and writes a column for the Opelika-Auburn News.