Judge of Character

So, rather than worry about whether Judge Sotomayor [1]will be a “reverse-racist” judge, conservatives should really worry that she’ll be a rock star — judicially speaking, of course.
Conservatives are right to be worried about the appointment of Judge Sonia Sotomayor to the United States Supreme Court, but they are worried for the wrong reason. The current opposition, fueled by talk-show pundits and interest-groups that depend on controversy to survive, has centered on the accusation that she’ll allow her background as a New Yorker of Puerto Rican heritage to influence her decisions. That debate is so dated that it verges on ridiculous. Conservatives are still stuck in the 1990s with their obsession over identity politics. We’ve been there and done that, and everyone knows that it isn’t biography but judicial philosophy that matters. (Compare Justice Thurgood Marshall [2] to Justice Clarence Thomas [3]: Enough said.) So, rather than worry about whether Judge Sotomayor will be a “reverse-racist” judge, conservatives should really worry that she’ll be a rock star — judicially speaking, of course.

Judge Sotomayor already enjoys a great deal of public support. Recent polls show that most Americans approve of her, and for good reason. Hers is an American-dream story: Young Puerto Rican girl from New York loses her father and is diagnosed with diabetes; her single mother instills in her the value of education; she attends Princeton University and Yale Law School. At the very young age of 38, she is appointed to the federal bench — by the first President Bush. In her capacity there, she stops the baseball strike, earning the admiration of fans worldwide. Then President Obama nominates her to the United States Supreme Court. Standing next to him, Judge Sotomayor tears up as she thanks her mother, who is at the White House, watching her daughter become one the most influential people in the world.

As the public gets to know Sotomayor better, it will likely end up really liking her, especially if she holds her own in the confirmation hearings. Watch one of her talks on YouTube and you get the sense that she’s wicked smart, quick-witted and not easily intimidated. There is something young, modern and almost hip about her — that is, if “hip” is a term that can be used to describe a Supreme Court justice. Unlike Chief Justice John Roberts [4], who is also smart and relatively youthful, Judge Sotomayor doesn’t seem elitist or snobby. Rather, she seems like the kind of person who greets the janitor by name, talks Yankees with the guys but doesn’t betray her girlfriends. She’d be a fabulous guest on “The Daily Show.”

Why is this kind of star quality important for the Court? Well, ultimately, the Supreme Court only has the power to persuade. The Court can’t call in the army to enforce its rulings. It doesn’t have a budget for public relations. All any justice has is words — written and spoken — to convince her colleagues, her president, her Congress and the American people that hers is the wisest way to interpret the Constitution. If a justice is to make her mark on the law, she must be both a great intellect and a great communicator. What President Obama wants in Judge Sotomayor is not just her background and credentials, but her potential to get people to listen.

It’s important for the future of democracy that people listen. Average citizens have to know the Constitution and believe in its relevance to their own lives. In this post-racial, post-Facebook world, the Court needs justices that can reach beyond the courtroom. A strong judge is someone who can bring the law to life — who, by the turn of a phrase and the persistence of a philosophy, can give the public confidence in the Constitution and in the Court itself. To do that, the Court needs both the right message and the right messenger.

If there’s any criticism to be made of the “liberal” justices currently on the Court, it’s that they lack intellectual charisma. No justice has been less influential than retiring Justice David Souter [5]. He is relatively reclusive. He doesn’t give many speeches. He writes technically precise but oh-so-boring opinions. After a year of studying Constitutional law, my students probably couldn’t name one opinion by Justice Souter that spoke to them. Yes, he often voted in ways that advanced individual rights and freedoms — and for that, many are grateful. But he is not the kind of judge you’d stand in line to see, nor is history likely to remember him for his profound impact on the law.

Now, compare Justice Souter to Justice Antonin Scalia [6]. Justice Scalia is, hands down, a legal rock star. Whether or not you agree with his opinions, they are often brilliantly written. My students quote them just for fun. He’s constantly on tour speaking at law schools and organizations, and he tells his audience exactly and unapologetically what he thinks. He’s a prolific writer, penning everything from his judicial philosophy of Originalism [7] to advice books for lawyers. He never shies away from the media. And every lawyer who stands before the Court is first and foremost concerned about how they’ll respond to Justice Scalia’s relentless, sarcastic questioning. Justice Scalia may not always get his colleagues to see things his way, but he has almost singlehandedly convinced a generation of law students and the public that there is no other way to interpret the Constitution than by trying to figure out what a bunch of now-dead guys meant when they wrote the thing.

Judge Sotomayor may be the Scalia antidote that many liberals have been hoping for. She, too, can be a relentless questioner and doesn’t seem afraid to speak her mind. While her opinions on the 2nd Circuit don’t have much flair, she may find her voice once she’s got a lifetime gig at the biggest legal venue of them all. Scalia doesn’t always play so well with others, but Judge Sotomayor, like Justice Sandra Day O’Connor, may be able to work cooperatively with the other justices and win them over to her arguments. (I have wondered whether President Obama imagined that the love of baseball shared by both Chief Justice Roberts and Judge Sotomayor might help to form some unlikely alliance.) And, if she’s willing to engage with the public in a way that is both welcoming and honest, the next generation may begin to understand that the greatness of our Constitution is its ability to adapt to a world that was unimaginable at the time of its birth.

In the next quarter-century, our Constitution will be put to the test. Unfortunately, during her confirmation hearings, Justice Sotomayor will likely be asked about old battles in the culture wars. This will be a mistake. Rather than dwell on where she stands on Roe v.Wade, we ought to seek her ideas about the Constitutional right to clone one’s own genetic material. Instead of focusing on whether we can use race or gender as a factor in college admissions, we should ask her how, under the Equal Protection Clause, we should classify a person born with two X chromosomes who has undergone surgery to be an anatomical male. It would be interesting to know her views on how we’ll define “the press” under the First Amendment when the media as we now know it ceases to exist, or whether the Court should enforce the rulings of foreign tribunals against our own government.

Not that Judge Sotomayor could, or should, answer such questions directly. Rather, we should acknowledge that the questions we will face as a nation, and those that will test our resolve to agreeably disagree, lay ahead of us. It matters not whether Judge Sotomayor is a woman or Hispanic, or whether she is a liberal or moderate on the issues of yesterday. What matters is that she has the willingness to work with her colleagues, the wisdom to make just decisions, the humility to understand the limits of her role, and the courage to help guide the nation through difficult questions we have yet to imagine. And it matters most that she’s a player, a real engaged and engaging player, on and off the Court.