The Emperor Has No Clothes: Why the Sotomayor Hearings were Disappointing

Lillian B. Rubin on the Sotomayor Hearings

WILL SOMEBODY out there say it please: The hearings that were supposed to provide insight into Judge Sonia Sotomayor’s suitability for the United States Supreme Court were a disgrace and an outrage. Not just the Republican bloviators posturing for the cameras and toadying to their right-wing constituency, not just the Democratic yea-sayers singing the judge’s praises and feeding her softballs and sweet talk, but Sotomayer herself.

I have no doubt that Sonia Sotomayor is a remarkable woman, nor do I fail to appreciate that hers is an inspiring story. But am I the only one who thinks the repeated—and seemingly obligatory—references to her past from both sides of the aisle were more a self-congratulatory bow to American exceptionalism than to Judge Sotomayor and her personal accomplishments?

I don’t mean that America doesn’t deserve kudos for a social order that still makes such a climb possible, although far less likely than when I grew up in the same place and similar circumstances as Judge Sotomayor. But it would sit easier if there had been even one voice—if not on the committee then in the media—to remind us that she’s one-of-a-kind, or at best, one-of-a-few, and that most of her former neighbors still live in the South Bronx, still scrabble for the food and the rent, and still suffer the effects of the prejudice and discrimination that has dogged their lives.

My real question, however, is: Where was that savvy woman her friends and colleagues describe, the one they say is smart, warm, and funny, the one who has had such a brilliant career and is now about to ascend to its pinnacle? Why was she in hiding? Yes, I know, she’d been briefed and rehearsed until her brain probably was rendered incapable of spontaneous thought. But why did she have to back away from truths she’d spoken so eloquently in the past? Would it have really have hurt her confirmation chances if, when questioned about her “wise Latina woman” speech, she had said, “Yes, of course, my life experiences as a poor Latina woman have a bearing on who I am today and, therefore, on how I see the facts of a case. With respect, senator, so do your experiences as a privileged white man influence what you see and how you judge it.”

Why did she reject President Obama’s statement that judicial empathy has a place in deciding hard cases? Does anyone really believe that a judge must be an unfeeling robot? Or that such a goal is either desirable or possible?

Why was she so quick to throw in her lot with those who argue that precedent supersedes judgment? What are judges for anyway? If precedent always rules, then we need history books, not judges.

Was it really necessary for her to agree with her right-wing interlocutors, that the U.S. Constitution is not a living document, but one that is “immutable,” subject to change only by amendment? How does she square that with historical fact and with the many Court rulings that “find” cause for change when the evolving society requires it?

It was a stellar performance in how to evade committing herself. But rather than commend her for having “made no major mistakes that would jeopardize her confirmation,” as a front-page story in the New York Times did, maybe we should be reflecting on the waste of an opportunity to make these hearings a learning experience for America.

Instead, we were consigned to senators bloviating about the importance of impartiality, precedent, and “settled law,” with not a single word about the hypocrisy that underlay the words. Not from Judge Sotomayor, not from anyone on the Democratic side of the aisle, not from the mainstream media. When Senator Lindsey Graham kept hammering at her about whether some controversial holding of the Court is “settled law,” where was the voice that might have said: “Excuse me, senator, but what does ‘settled law’ mean? If all rulings of the Court were forever ‘settled,’ we would never have overturned Plessey v. Ferguson, which, as you know, was ‘settled law’ for a good part of a century.”

When Senator Jeff Sessions repeatedly asked for assurance of her impartiality and respect for precedent, where was the voice that might have asked: “With all respect, senator, if you’re so committed to precedent and believe that Court’s rulings become ‘settled law,’ why have you spent so much of your career trying to overturn Roe v. Wade?” Indeed, even when she might justly have taken umbrage–gentle umbrage under the circumstances, to be sure–at Senator Sessions’ suggestion that she voted with Judge Carbanes in a case because they were both of Puerto Rican descent, she remained silent.

In doing so, she joined them in fostering the great American myth that the Supreme Court is the ultimate impartial arbiter of justice, and that the justices, unlike the rest of humanity, are free of the influence of their past experience, their life station, their gender, their beliefs, their political persuasion, their prejudices, and yes, the color of their skin. What a shame. She could have been an American hero, instead she sounded like just another politician.

Lillian B. Rubin is with the Institute for the Study of Social Change, University of California, Berkeley. She is a sociologist, psychologist, and author of numerous books, the latest of which is 60 on Up: The Truth about Aging in America (Beacon Press, 2007).