Dean and Distinguished Professor of Law, University of California, Irvine, School of Law
Sonia Sotomayor is now a familiar face, having appeared on the cover of countless magazines and newspapers. She is about to become the third woman to ever sit on the Supreme Court and the first Hispanic. She grew up in the housing projects of the South Bronx and has dealt with a life-long serious illness, diabetes, which was diagnosed when she was eight years old. In all of these ways, she brings life experiences that rarely, if ever, have been represented on the high court.
Do a justice’s life experiences matter? Should they? The answer to both of these questions is absolutely. The Constitution is written in broad, often vague language. Phrases like “cruel and unusual punishment,” “due process of law” and “equal protection of the law,” inevitably require interpretation. Liberals and conservatives have very different views that lead them to radically divergent conclusions.
Equally important, the rights in the Constitution are not absolute. Justices frequently have to balance competing considerations. Each justice’s balancing is a product of his or her views. Similarly, constitutional law often requires that justices decide whether a government action is “reasonable” or whether there is a compelling justification for the government’s conduct. These conclusions, too, are a product of a justice’s views and life experience.
For example, there is a case now pending in the Supreme Court concerning whether a public school could strip search a seventh grade girl suspected of having prescription strength ibuprofen. The legal issue is whether this was an “unreasonable” search in violation of the Fourth Amendment to the Constitution. Certainly a justice who has been a seventh grade girl will bring an understanding that would be absent from an all-male court.
Another illustration concerns affirmative action. A few years ago, the Supreme Court considered whether colleges and universities may consider the race of students as a factor in admissions decisions to enhance diversity and benefit minority students. All nine justices agreed that the issue before the court was whether diversity in the classroom is a compelling government interest. The life experiences, including the race of the justices, matters in how they answer this question.
Every first year law student learns that judges and justices often have great discretion in deciding cases. Obviously, there are many cases (though few at the Supreme Court) where the answer is clear and any judge would come to the same conclusion. There also are many cases where the results have nothing to do with ideology. But there are countless cases, especially at the Supreme Court, where there is great discretion in deciding. The results then turn on the individuals on the bench, including their ideology and their life experiences.
There seems little doubt that Judge Sotomayor will be confirmed for a seat on the Supreme Court. She is impeccably qualified. I have found deeply offensive and objectionable those, such as Karl Rove, who have questioned her intellect. She graduated summa cum laude from Princeton University and from Yale Law School. She has had a distinguished career as a prosecutor, a lawyer in private practice, a federal district court judge, and a federal court of appeals judge. It is sad that her intellect has been questioned simply because she is a woman of color.
With 59 Democratic Senators, President Obama could have virtually anyone he wanted on the Supreme Court. In Judge Sotomayor, he picked an individual who is unlikely to draw significant opposition. In that way, it was a brilliant political move by the President. Any president wants to select a justice who will please his political base, but who will not require a great expenditure of political capital in the confirmation process. That certainly seems likely for Judge Sotomayor. Republicans, even conservative Republicans, know that attacking her risks angering a political constituency that is of growing significance in the United States.
I have met Judge Sotomayor on several occasions and have had two former students clerk for her. She is tremendously impressive in person, conveying both tremendous intellect and great warmth. My former students who have clerked for her rave about her.
What difference will Sonia Sotomayor make on the Supreme Court? In one sense, her presence will change very little. Ideologically, she seems very similar to the justice she is replacing; David Souter. Both are moderate liberals, left of center, but not very far left. The court will retain the same line-up with four very conservative justices in Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
There will be four moderate liberals in justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. That will leave Justice Anthony Kennedy as the swing justice, just as he has been for the last several years. Justice Kennedy, appointed by President Ronald Reagan in 1987, is conservative, but sometimes joins with the four more liberal justices.
But that is not to say that a Justice Sotomayor will have no effect. In the short-term, she might be able to persuade Justice Kennedy to join the more liberals in cases that he otherwise might have voted with the conservatives. Her life experiences and perspectives may help to persuade justices, especially Justice Kennedy, in some cases.
Also, in the long-term, Sotomayor could help change the direction of the Supreme Court. Justices have life tenure and now routinely sit into their mid-80s. Justice Stevens is now 89 years old. He was appointed to the court in 1975 by President Gerald Ford. It is easy to imagine Justice Sotomayor being on the court for another 30 or more years. Depending on presidential elections and the sequence of vacancies, she could be part of a major transformation in constitutional law.
Supreme Court vacancies do not occur very often. This is only the third Supreme Court vacancy to be filled by a Democratic President since Lyndon Johnson in 1968. It is thus completely appropriate that Judge Sotomayor be subjected to careful scrutiny. But I have little doubt that she will be approved and be a splendid justice for many years to come.