Supreme Court Nominee

We have President Obama nominating Judge Sonia Sotomayor to replace Justice David Souter on the US Supreme Court.  Here is an article, with video, from The Boston Globe.

Yesterday George Anthes, on the Local Access show "City Lights," said that he believes she was one of those who is opposed to the increase of Presidential Power.  As a "federalist" and someone who believes in the separation of powers, I find this a very strong point in her favor.

• I am not so keen on her position on copyright (I am against the Mickey Mouse extension and the all encompassing urge to copyright everything and extend it for ever).
• I like her stance on the First Amendment, which is vital to the success of democracy.
• I am not so sure about her position on employment discrimination, given her position in the Hartford Firefighters case.
• On the other hand, her property rights positions seem on the right side of the issue.

The one thing I wonder about is the quote from her delivery of the Judge Mario G. Olmos Memorial Lecture in 2001 at the University of California Berkeley School of Law.  In the lecture she brought up Justice Sandra Day O'Conner having said:  "wise old man and wise old woman will reach the same conclusion in deciding cases." Ms Sotomayor then went on to say that she was not sure there can be a universal definition of wise and then she said:

Second, 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.

I found comments on this in a Washington Post article here. Another version is here.

I am assuming that this is essentially a "throw away" line.  But, even so, a careful reading suggests that the key is "who hasn't lived that life."  So, if the case involves issues to which the background of an observant Latina might be relevant, then she may have a better shot than some "white guy."  On the other hand, if the issue turns on issues our observant Latina might not be familiar with, but the "white guy" might, then it would go the other way.

However, this raises two issues for me.  The first is, does the US Supreme Court decide issues based primarily on the law or on empathy?  This question springs from a comment President Obama made on the campaign trail and has reiterated recently, as noted in this Wash Post article.

... want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.

This is not to say that he is not looking for a strong grounding in the Constitution; he is.  But this is additonal qualification.  In fact, Washington Post columnist E J Dionne, Jr, refers to Ms Sotomayor as the Anti-Roberts.

He was drawn to her not simply because the politics of naming the first Latina justice were irresistible, but also because he saw her as the precise opposite of Chief Justice John Roberts.

The second question is, what constitutes diversity?  As the table below shows, we have not been seeing much diversity on the US Supreme Court.

Justice	Under Grad	Law School
John Roberts	Harvard	Harvard Law
William Rehnquist	Stanford	Stanford Law
Sandra Day O’Conner	Stanford	Stanford Law
Sam Alito	Princeton	Yale Law School
Potter Steward	Yale	Yale Law School
John Paul Stevens	U of Chicago	Northwestern
Anthony Kennedy	Stanford	Harvard Law
Antonin Scalia	Georgetown	Harvard Law
David Souter	Harvard	Harvard Law
Clarence Thomas	Holy Cross	Yale Law School
Ruth Bader Ginsburg	Cornell	Columbia Law
Steven Bryer	Stanford	Harvard Law
Sonia Sotomayor	Princeton	Yale Law School

John Paul Stevens and Ruth Bader Ginsburg are what passes for diversity here.  Aside from Justice Ginsburg, where is the person who is a graduate of some land grant college?  My wife is a graduate of a Land Grant University—Purdue.  I work with several people who are graduates of UMass Amherst (Land Grant), and while I would never give ground on the fact that UMass Lowell is much better than that school on the other side of the Quabbin Reservoir, they seem to have benefitted from a very fine education and speak well for that institution.  We also have an MIT PhD in the office.  Excellent chap, from a Land Grant University.

And, that doesn't even talk to Law School.  There we have even less diversity.  Five different law schools and eight different undergraduate schools.

I am reminded in this of a speaker at the Army War College in late 1982 or early 1983, who denigrated President Reagan's understanding of Foreign Policy because he was from the wrong part of the country, i.e., he wasn't from the East Coast, and thus just couldn't understand that all things revolved around the Atlantic relationships.  (As North Korea and Mexico keep pointing out to us, they don't.)

So, at this point—pending the Senate Confirmation Hearings—I find the nomination of Ms Sotomayor acceptable, not that anyone much cares what I think.  On the other hand, I would like to see some diversity in background as Presidents pick future justices.

Regards  —  Cliff