Wise Latina, Stupid Process

Every few years here in the United States, we go through the national trauma of selecting a new Supreme Court justice. The process works like this:

1. A sitting justice dies or retires.

2. The President considers potential replacements based on:

a. Judicial philosophy of possible nominees;

b. Gender balance of the court;

c. Racial balance of the court;

d. Special interest groups which haven't been placated lately;

e. Religious considerations;

f. Cost of linoleum in Fond du Lac;

g. - y. - Other socio-political considerations; and,

z. Legal qualifications of the nominee.

You can see all this at play in the ongoing soap opera over the nomination of judge Sonia Sotomayor to the Supreme Court.

No matter what anyone thinks, the selection process for Supreme Court justices is not designed to identify and nominate the most outstanding and well-qualified jurists. It's the legislative and judicial equivalent of making sausage - you toss all the social and political considerations into the hopper, let a few cranks have a turn, and out comes not the best, most qualified individual, but the one who is least offensive to the largest number of people with a vote.

It's all so predictable. Republicans will insist on a "strict constitutionalist" who will not "legislate from the bench." Democrats will insist on someone who understands the problems and concerns of average Americans. Every member of the Senate Judiciary Committee will bloviate at length for the benefit of his/her constituents, the nominee will give all the right answers, and then - after days of grueling grilling and political theater - a vote will be take under conditions of exhaustion. And then, either there's a new justice on the court, or the whole kabuki dance begins again.

This is stupid.

For the record, I think Judge Sotomayor is a very impressive jurist. I also think she shouldn't be on the Supreme Court. Consider her much-quoted and much-maligned comment that "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." Can you imagine the howls of outrage that would have arisen if a white male nominee had said, "I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a (insert minority here) who hasn't lived that life"? Be honest. You know it's true.

The comment was stupid. Even if you read Judge Sotomayor's comment in the context of the entire speech (which you can read here), it remains insensitive and in poor taste, and it plays directly into the hands of those who would object to her nomination simply because she's a woman or a Hispanic.

And consider the recurring, moronic canard about "activist judges legislating from the bench." I would suggest that judges legislate from the bench when spineless legislators won't legislate from the legislature. When Congress is too wrapped up in political considerations and too indebted to various special interests to write necessary laws, the courts step in. This allows Congress to have it both ways: they don't have to be on record as having taken politically unpopular positions, and they can blame someone else for doing what they were afraid to do.

Unless Judge Sotomayor shows up drunk for the hearings, or a video of her dancing topless while waving a Nazi flag appears on the Internet, she'll be confirmed to the Supreme Court. I just hope that she proves to be a wise jurist, regardless of her sex and ethnicity.

Have a good day. More thoughts tomorrow.

Bilbo