"With this historic vote, the Senate has affirmed that Judge Sotomayor has the intellect, the temperament, the history, the integrity and the independence of mind to ably serve on our nation's highest court," President Barack Obama said yesterday. And the president is right.
When she is sworn in at a private ceremony at the Supreme Court tomorrow, Sonia Sotomayor will become the nation's first Hispanic Justice. Her ascendancy represents the "breaking [of] yet another barrier and moving us yet another step closer to a more perfect union," the president said. I agree.
The right has castigated this appointment as an example of identity politics, attacked the judge as an activist, protrayed her as a closet racist, and questioned her intellectual ability. These desperate pleas and smears were pointless rubbish and can now be consigned to the ash heap of partisanship. That Judge Sotomayor was so decisively confirmed is certainly a sign of the president's power; oh, that it were also a sign that the silly season in the selection of judges had ended.
This year's confirmation process had the look and feel of bad day-time television, worthy more of Oprah, or, perhaps even Gerry Springer. Opponents wove straw men out of stray comments, rhetorical truisms and isolated dicta. These straw men could not even withstand the heat of prime-time television cameras before bursting into flames.
I was asked by a good friend to sit out commenting on the confirmation process, and so I did. But I am not forbidden to express delight about Sotomayor's appointment. I appeared before her many times in the United States Court of Appeals and found her fair, tough and impartial. She had no ideological axe to grind, knew the record of the case before her and spotted troubling legal issues on which the case turned. The fact that she does not apparently have a pre-set judicial "philosophy" that yields insight into how she will rule before a case reaches her chambers is merely a sign that she has not prejudged things. That's what we want in a judge.
But despite the pleasure I take in the Sotomayor appointment I remain troubled by the cast and color of the current Supreme Court. Sure, there are black, white and brown justices. Sure there are men and women. But the group of nine is still as vanilla as it comes when it comes to real-world experience. Not a one of the justices has spent any real time practicing law in the private sector representing little people. With depressing regularity, the men and women of the Court are graduates of legal status factories who have spent decades in government service and/or milking the teats of the rich and affluent in large firms.
I say we agitate to put a practicing criminal defense lawyer or plaintiff's lawyer on the bench of the United States Supreme Court when the next vacancy occurs. There are two Americas, one affluent, prosperous and capable of navigating life's shoals with the aid of talented legal counsel. And then there is the other America, where most of us dwell. In this America, folks struggle to pay their bills, get arrested when they lose their temper, lose jobs and suffer the thousand and one injuries of class that we pretent do not exist and do our best to hide. This America is unrepresented on the Supreme Court.
I am aware that Clarence Thomas and Sonia Sotomayor came up poor; no question about it and I respect and admire them for rising with the tides of their ambition. But as they ascended in American life and law, they lost the moorings that tied them to the raw need a trial lawyer faces daily. Why not appoint a plaintiff's lawyer or criminal defense lawyer to the bench?
Trying to accomplish such an appointment will be difficult. Lawyers for the dispossessed don't generally have large corporate backing or expensive slush funds. There is no built in infrastructure comparable to the groves of academe, the courts or mega-firmdom to identify and cultivate talent. And as a class, trial lawyers and criminal defense lawyers are generally regarded with suspicion ... until they are needed. In the dark of night, the villain quickly becomes hero.
I am considering forming a 501c(3) to identify and advance the cause of finding and promoting an ordinary lawyer for the high court. There are hundreds of lawyers in the United States who could serve with distinction on the high court. Finding the right one might be difficult, and persuading the president to nominate him or her might be impossible. But I really don't want to watch another meaningless confirmation hearing. We've had enough vanilla on the high court; let's look for a new flavor.