The Two Sides of Sotomayor

Judge Sonia Sotomayor's nomination has turned into an almost scripted committee review.  The outcome appeared to be almost predetermined the first day when Senator Lindsey Graham, Republican from South Carolina, set the bar low for Judge Sotomayor. "Unless you have a complete meltdown, you're going to get confirmed," he said, adding rapidly "And I don't think you will."

There was no meltdown from the Wise Latina Woman, and the nomination process is sailing along smoothly for her.

What is at stake in this appointment? And if the stakes are so high, why has the political fight has moved on?

The Supreme Court is one of the three branches of our nation's government. The appointment to Supreme Court justice is for the life of the judge.

"As the final arbiter of the law," according to the Supreme Court Web site, "the Court is charged with ensuring the American people the promise of equal justice under law."

James Madison wrote of the importance of independent judges, focused on the law rather than on political passion, partisan beliefs or competing factions.  In a nation of passionate people often caught up in defending or advancing their beliefs, there are nine people who are called on to be impartial, independent, and focused on the law.  They are the nine Supreme Court justices.

On May 26, when President Obama announced his nomination for the Supreme Court, he referred to the qualifications he thought were important in a Supreme Court justice: "rigorous intellect ...recognition of the limits of the judicial role" and  "experience."

However, it was not judicial experience that he was referring to -- it was life experience -- "Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion."

This experience, Obama said, would give the nominee the "compassion and empathy" she needs to apply justice from the Supreme Court bench.

This view is in sharp contrast to the ideal of blind justice promoted by James Madison.

But last week, during the Senate confirmation hearings, Sotomayor rejected Obama's notion of approaching judging with empathy and compassion. "I wouldn't approach the issue of judging in the way the president does," she said. "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."

This comment contrasts sharply with the one she made when she said, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but ...to judge when those opinions, sympathies and prejudices are appropriate."

Last week, Sotomayor also attempted to recast her remark in the same speech that a "wise Latina woman" judge would usually reach better conclusions than a white man. She called the remark "a rhetorical flourish that fell flat."

"It was bad because it left an impression that I believed that life experiences commanded a result in a case," Sotomayor said.

Certainly no one really thought she was going to say, "I am much wiser and have a greater depth of understanding than any of the 19 committee members, as only two are women and none are of color -- you 19 clearly do not have the life experiences required to be as wise as I am."

The inherent conflict between proclaiming the historic nature of Sotomayor's nomination as a Latina woman while proclaiming that justice would not be served differently due to her being a Latina woman appears to be continually brushed aside.  If it makes no difference -- why is it mentioned?  If it wasn't one of the reasons for her nomination -- why is it mentioned at all?

Is she qualified? Yes. Will her life experiences affect her decisions? We will have to wait and see which side of Sotomayor wins out -- the rhetorical flourish from her speeches or the impartial perspective on display this week.

Of one thing we can be sure: When it's all said and done, having held her cool, Sotomayor will be confirmed and will continue to be, in her own words, "a Latina voice on the bench."

Jackie Gingrich Cushman, is a syndicated columnist for Creators Syndicate and the co-author of "5 Principles for a Successful Life: From Our Family to Yours"