WASHINGTON– Much has been already said about the nomination by President Barak Obama of Judge Sonia Sotomayor to the Supreme Court. Predictably, we have heard from the Obama supporters who claim that this an inspired choice, that she is supremely well qualified; and that she will bring to bear all her scholarship and long experience on the bench as a significant contribution to the Supreme Court.
Opponents instead believe that she is another leftwing activist, another judge who will not resist the temptation of legislating from the bench. It is assumed that she will try and force on America her own “progressive” prejudices, conveniently interpreting the Constitution so that it may be construed as protecting rights that do not exist.
Besides, the critics have found and latched on to a speech that she gave in which she seems to make the case that, by virtue of being a Latina woman from a very modest background, she would have a better understanding of issues than a white male counterpart. “Oh My! How could she say that personal background is a plus when called upon to determine what is and what is not consistent with the Constitution? Judges are supposed to be pure jurists. Their background and personal experience should have no influence in the way they understand the law”. (Oh well. So, are the purists really trying to say that we have no evidence of present or past prejudice dictated by culture, social status and experience among members of the American judiciary? Are all judges always shrouded in Olympian detachment? Are we really kidding? Anyway, digging further on this would take us into a different topic…..).
But, be that as it may, and leaving the screening of Sotomayor’s record as an Appellate Court Judge to the Senators who will discuss her qualifications and suitability to be the next addition to the US Supreme Court, the most glaring shortcoming related to Sotomayor’s nomination has nothing to do with her real or alleged opinions.
It has to do with the fact that her selection is mostly an act of political calculation. That is: we are back to the usual kind of politics of gifts and favors. She has been selected mostly because she is a Latina jurist and because Obama wishes to please this important constituency through this gesture. This obvious political undertone and its implications –the fact that we are back to “presents to special groups as the normal way of conducting business”– have not been properly discussed. Or, rather, the issue of a political angle has been mentioned, found to be unobjectionable, (“this is how things are done in Washington”), par for the course, and become a non issue.
Everybody –left and right– nodded, meaning everybody knows and agrees that this is about “buying friendship” and in the end votes from what is still a rather underrepresented constituency, now leaning quite clearly towards the Democratic party. This having been noted and having also been noted that Obama is smart in grabbing this chance to please his political supporters, we moved on. Which is to say that the process and the logic that inspires it, according to most, is just fine.
So, now the debate and the potential fight in the Senate and in the opinion pages is about Sotomayor’s assumed, perceived or real ideological background and how it will affect her role as Justice. And not a word, really, about the fact that, without taking anything away from her demonstrably important qualifications, she is a pawn in a continuing old fashioned political game in which we recognize interest groups first and individuals, when possible, way down the line.
But wasn’t Obama supposed to change “everything”? Wasn’t he supposed to transform not just the tone but the substance of politics in Washington? Well, it does not seem so. And what is worse, nobody really cares, proving that the lofty predictions of the coming of this “New Era” were just a lot of blah, blah –certainly articulated by Obama himself during the campaign– and then magnified and exaggerated by an army of vacuous sycophants.
In fact, only a few commentators, among them Juan Williams of National Public Radio and Shelby Steele of the Hoover Institution, (both of them African Americans, as it were), noted that, through this choice and the clear political message to the Latino Community wrapped into it Obama in fact has betrayed the hope of all of those who thought that, because of him, we had entered this new world of truly substantive, post racial, post interest groups politics.
This would be a new world of mended fences and new relationships at last based on the assumption that people are finally treated as equals and thus reward is bestowed for personal, earned merit. No longer a world of balkanized constituencies in which a political leader leads by carefully distributing patronage to this and that group, according to their numbers, weight, relevance, financial contributions etc.
Well, we may get to this new “color blind”, meritocratic bliss at some point. But the nomination of Sonia Sotomayor is an indication that we are not there yet. And the point here is not to argue that she is not qualified or that, only by virtue of being a Latina, she jumped on top of the list and got selected. But we can safely say that, while being a qualified and experienced jurist and judge was necessary for Sotomayor to be considered, her ethnic background, in the light of the huge wave of Latin support for Obama in the presidential election, made her irresistible for this high profile nomination. Had she been Sonia Brown of white middle class background, with the very same credentials, somehow she would not have had the same appeal. And here we have the problem; because, according to the brand new script of the “Era of Barak Obama”, this was not supposed to happen.
Whereas it has happened. Now this is not tragic; but it is bad, in as much as it perpetuates belief in the assumption that group politics is what really matters. The Latino Community (assuming that there is a such a thing), is huge and growing. One of the problems related to these millions, many of whom are very recent immigrants, is that they are not integrating as fast as it may be desirable. Most of them are economic immigrants. The last thing that we should desire is for these millions to find a political rationale for keeping their separate identity, so that, by flexing their muscle, they get something “more” from the system. But this may be the message. Today you get a spot on the Supreme Court, tomorrow maybe amnesty for the millions of Latin illegal immigrants, down the line more convenient re-districting that will get more Latino legislators in the House and who knows what else.
A Supreme Court Justice should not be a present to a group so that they will keep on liking us. But, to the extent that we accept this logic of favors and nods as the way to do business, we encourage balkanization and we have a Nation with a lower and lower common denominator. And this is bad as we should not want to have people to be committed to America because, as a group, they get “things” from America. We should want all people to be sincerely committed to a polity that is beyond ethnicity or other narrower interests because they recognize its high values –and these are values that should apply to all.
This is the real qualitative change that we need in order to re-energize belief in the legitimacy of America as a Modern Republic. And this seemed to be part of Obama’s message –a message that convinced millions of young people to become his enthusiastic supporters.
In fact, in the context of traditional politics, with this Sotomayor nomination Obama did nothing strange nor particularly out of the ordinary. He gave a powerful nod to a powerful political ally, the Latino Community, whose votes he wants now and in the future. And by giving this ally the enhanced prestige of having the first ever Latin Supreme Court Justice, Obama strengthens the relationship. (By picking a Latin woman, he also gives a nod to the female vote, another essential ingredient of his coalition. Even non Latin women will appreciate that their gender gets special recognition from the President. So, hey, two birds with one stone…..Not bad).
But, this choice and the transparent political motive behind it creates serious doubts about this assumed notion that, through Barak Obama, we had indeed entered a new age of mature, substantive politics. Remember, this was supposed to be a new age based on judging individuals as individuals and not on evaluating an individual as a representative of a group. In the past, that particular individual would get more or less consideration depending on an unwritten quota system that would determine whether his/her group deserved to get “more” or not. But these old ways, whereby racial/ethnic/interest groups, in the name of affirmative action, diversity or whatever the underrepresented could claim an inherent right to “get more”, were supposed to have become obsolete.
Indeed, the “post racial” Obama had done extremely well in gliding through the whole election process without making much of an issue about his race and by carefully avoiding provocations, and there were many, that might have triggered an old fashioned racial dispute. (In fact, truth be told, it was Hillary Clinton’s campaign which, in an act of desperation, tried to make Obama’s race an issue. Obliquely at least, the point was made that she –a white woman— had better chances to be elected by a still predominantly white America than a black man who may turn people away because he is black. Well, Clinton’s arguments worked very well in the latter phase of the Democratic primaries. She won almost everything. But, as we know, it was too late).
Given Obama’s ability to somehow transcend race issues, with his nomination and subsequent convincing victory, the accepted narrative was that we had not just the Democrats re-conquering the White House; but that we, as a Nation, had achieved a real qualitative revolution –a good revolution that was supposed to bring us into a more mature era in which it is all about individual character and qualities. A Black Man elected with the general support of Whites should mean that they looked at him and trusted him as an individual, not as a Black politician. (Not entirely clear as to whether the same logic applied to Blacks who almost unanimously voted for him).
Given all this, what is truly surprising in this matter of the Sotomayor nomination is that all observers, friends and foes alike, are unwilling to criticize this episode that confirms the continuation of the balkanization practice, as a matter of course; nor is anybody willing to point out that this practice is very much in keeping with the old fashioned (bad) customs that supposedly we had transcended with Obama’s election.
The Republicans may have no interest in saying anything because they know that when their turn will come they want the freedom and the discretion to do the same thing: that is to reward friends and allies with symbolic and substantive gestures and favors as they will see fit.
The problem is more with the Democrats and in particular the large armies of the young supporters who went for Obama as a matter of instinct and faith: because he is young, charismatic, well spoken and “different” in a way that defies simple categorization. They, more than the old Capitol Hill hands, were told or assumed that this was not just another politician but “a cause” that would bring about qualitative transformation in both substance and style: a rebirth of the original American values.
Well, no doubt there is a different style and certainly Obama is more appealing than George W Bush with his somewhat fake folksy ways. As for substance, we shall see. This nomination could have been a good chance to show real change –and it was missed. Surely there will be more chances and we shall see then…..
But the general silence regarding this clear reversal into (or, better, continuation of) the old ways means that the country, for the moment at least, is not that interested in noting this obvious contradiction between what we were told to expect and what actually happened — and this is not a good sign. After all, we are only a few months into the New Era and we already forgot or stopped caring about what was promised?