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Eric Deggans

Not conservative? Then put background aside when making Supreme Court decisions

Never have I wanted more to throw a brick through the screen of my television.

Watching Supreme Court nominee Sonia Sotomayor sit stoically through a succession of white men, perched at the head of the whitest, malest, most powerful political institution in the country — the U.S. Senate — telling a Latina that her Hispanic heritage should mean nothing in her work as a judge, was heartbreaking.

"Our legal system is at a dangerous crossroads. Down one path is the traditional American system, so admired around the world, where judges impartially apply the law to the facts without regard to personal views," said Republican Sen. Jeff Sessions of Alabama during the first day of Sotomayor's hearings Monday. "Down the other path lies a brave new world, where words have no true meaning, and judges are free to decide what facts they choose to see. ... I reject that view, and Americans reject that view."

Sen. Charles Grassley from Iowa, also on Monday: "Judge Sotomayor, you are nominated to the highest court of the land, which has the final say on the law. As such, it's even more important for the Senate to ascertain whether you can resist the temptations to mold the Constitution to your own personal beliefs and preferences. It's even more important for the Senate to ascertain whether you can dispense justice without bias or prejudice."

For anyone who knows how the pointedly conservative views of justices such as Antonin Scalia and Clarence Thomas have shaped their decisions, this posturing was worse than disingenuous. It was a neon sign: Judges get to use their personal backgrounds to decide cases when they're conservative.

GOP legislators have worked themselves into a lather over Sotomayor's comment about a "wise Latina" making better decisions than a white male. However true that might be regarding discrimination cases, it's the kind of in-your-face racial absolutism that was a perfect softball for conservatives bent on twisting her original meaning.

On Tuesday, Sotomayor tried to walk back that comment, dismissing the line as a clumsy mistake and insisting she would "state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging."

Still, consider what then-nominee Samuel Alito told the Senate during his confirmation hearings in 2006: "But when I look at those cases, I have to say to myself, and I do say to myself, 'You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.' . . . When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

Anyone who is paying the barest attention knows this is when Supreme Court rulings count most; when issues of law are debatable and all that's left is what each justice believes in his or her heart is right.

But this week's cavalcade of conservative GOP senators decrying Sotomayor's statements about her heritage and the role of judges in making law — boldly honest statements she had to know would come back to bite her some day — also reinforced that age-old Republican canard that conservative and white people don't make decisions based on their culture.

It's what I have often called the privilege of being generic. When Chief Justice John Roberts reaches back to his heritage and personal values to make decisions, he's simply allowing timeless principles to guide his thinking. But Sotomayor using the experience of being the first and the only in so many places of power is shrugged off as bias — an unforgiveable unfairness for GOP senators, mostly because it doesn't benefit their causes.

(Indeed, as blogger Glenn Greenwald recently pointed out, nobody asked Alito whether his Italian-American heritage influenced his vote upholding claims by Italian-American firefighters in overturning a Sotomayor-decided affirmative action case.)

Still, this is the beating heart of most conflicts over race in America. People of color fear decisions made by institutions still largely controlled by white culture and white people, while those white people in power often insist they are just doing "what is right" or "what is just" — unable or unwilling to admit the role their culture plays in their own decisionmaking.

What we're really seeing, of course, is an elaborate kabuki theater in which Republicans complain loudly about a jurist everyone knows is really a centrist — though you never can tell, once they get that lifetime appointment — so that when Barack Obama advances a real liberal justice next time, that person will look even more radical by comparison.

Sotomayor demonstrated she's going to play along, offering a short statement Monday that focused mostly on the facts of her biography and promising Tuesday that "at no time have I allowed my personal views to influence a case." It's the Obama strategy: If possible don't engage these sticky race issues, dodge them.

Along the way, we're treated to another high-profile instance where some people get to pretend they don't have an agenda while others are accused of nothing but.

Not conservative? Then put background aside when making Supreme Court decisions 07/14/09 [Last modified: Tuesday, July 14, 2009 9:33pm]

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