In many ways, Sonia Sotomayor’s appointment to the US Supreme Court is a great victory for the Obama administration. Like Obama’s, her biography is a modern retelling of the American dream: a working-class Latina who has risen to the top of academia and then ascended to the highest levels of government, in her case the judicial branch. But in the wider context of the court’s role as interpreter of the US Constitution, she is more likely to prove a return to the status quo than a corrective to the conservative bloc (Roberts, Scalia, Thomas, Alito) who have held sway in recent times. Justice David Souter, whom she replaces, was appointed by the first President Bush two decades ago, but he has often voted with the more liberal justices on the court. Sotomayor’s appointment, will change appearances but it cannot, by itself, alter the character of the court.
Few Americans have more than a passing familiarity with the work of the Supreme Court. Beyond a handful of famous cases like Roe v. Wade or Brown v. The Board of Education, the court is largely a donnish affair, the province of legal experts who share its philosophical interest in policing the margins of American government. Its work is remarkably varied: one day it might rule on whether Internet taxation is constitutional, the next it pronounces on flag burning, gay marriage, affirmative action or prayer in schools. This daunting multiplicity of concerns, while impressive, can obscure for the layman the court’s centrality in determining the direction of America’s cultural and political life. To take the most obvious examples, the nine justices effectively hold the power to extend or revoke the right to abortion and the death penalty, and, to take a more topical example, to determine whether the excesses of the Bush administration’s war on terror were understandable miscalculations or prosecutable crimes. Not only does the court have the power to rein in an ambitious executive, it can – in a perfect storm of wrong circumstances – play a decisive role in selecting one. The apparent division of the justices, along political lines, in Bush v Gore was probably the court’s low-point in modern times, but even the long shadow of that decision has done nothing to diminish the court’s power to shape the course of American life.
The conservative cast of the current Supreme Court is beyond question. Last year a study by a Chicago law professor and Richard Posner, a judge on the Seventh Circuit Court of Appeals, determined that four of the five most conservative justices who have served since the Roosevelt years, are currently on the bench (the late Chief Justice William Rehnquist was the fifth). In this context, Sotomayor’s appointment is really only the first of at least two steps that the Obama administration will hope to make – assuming a two-term presidency – to effect a realignment. Hence the importance, and the fanatical re-interpretation, of the president’s use of “empathy” when describing the sort of nominee that he preferred, as well as the analysis, ad nauseam, of Sotomayor’s harmless and perfectly sensible remarks about her life experiences as “a wise Latina” making her better prepared for the tasks ahead.
Since her appointment is not what the Americans like to call a “game-changer,” Sotomayor was given a relatively polite grilling during her Senate confirmation hearings. With a large Democratic majority in the senate to shepherd her through, the Obama administration was fairly confident from the outset that it would succeed. Nevertheless, the anxious undercurrents evident in the hearings’ questions about her ethnicity, and how this might affect her “judicial philosophy” are an important indication of what lies ahead in the Obama years.
The race question has begun to galvanise American politics again, entering, not surprisingly, stage right. When, for example, Obama made an off-the-cuff comment that the police had acted “stupidly” in arresting Harvard professor Henry Louis Gates Jr, a fortnight ago, given the “long history” of “African-Americans and Latinos being [disproportionately] stopped by law enforcement,” there was an suspiciously overheated response from the familiar cast of pot-stirring Baracknaphobes. On Fox News, that ever reliable barometer of right wing depression, Brit Hume lamented the way in which accusations of racism had “placed into the hands of certain people a weapon” which could be used to silence white criticism. Glenn Beck went even further, claiming that the president had “exposed himself as a guy” with a “deep-seated hatred for white people or white culture.” A hatred, one assumes, that forgot itself throughout Obama’s long and happy relationships with his white mother, and grandparents, and when he came to choose a vice-president. But subjecting these sorts of claims to a test of evidence is to miss their point, they are music to the base, facts, and even subsequent retractions are irrelevant.
Sotomayor did not face this sort of prejudice head-on, but the next minority nominee almost certainly will. Before that day comes, it can only be hoped that the third female and first undeniably Latino justice ever appointed to the court will live up to the hopes she set out during a 2001address at Berkeley: “[T]o understand takes time and effort, something that not all people are willing to give… My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar.” Now, more than ever, the US Supreme court could use a Wise Latina.
In the week that Sotomayor testified before the Senate, Judy Chu became the first Chinese American elected to Congress. She, too, is a sign of the changing times. A large part of the success or failure of the Obama presidency – currently besieged by a tenacious group of well-placed zealots who allege that the president is foreign born, with a forged birth certificate – will turn on how well this administration can defuse, or deflect, the tempests which arise as America negotiates a realignment not only of its judiciary and executive branches of government, but also – in the light of demographic shifts which can no longer be ignored – of race relations within the whole society.
