I really can’t explain why, but my eyes welled up as I watched Sonia Sotomayor take the Judicial Oath on Saturday to become the 111th Justice of the Supreme Court, the third woman and the first Hispanic to sit on that exalted bench. I cheered and applauded as she concluded, flanked by her brother and especially by her mother, the diminutive woman whose determination propelled her children out of the urban ghetto into university and the professions of medicine and law — and who held the Bible as her daughter joined the highest court in the land.

Was I so moved because I too am Hispanic, the child of a Cuban immigrant? Were my tears remembering the dreams of the ’60s, the feminist fights for goals the mainstream ridiculed? Was I awed by the indomitable power of a mother’s love? Or was it the evidence that the American dream still lives, despite the corruption and degradation of long-held ideals?

I suppose all play a part. But I think above all it was empathy — understanding and sharing the pride of achievement felt by mother and daughter, the reward for years of sacrifice and striving and deferral of momentary pleasures for the sake of future ones. Empathy is that quality so maligned by Sotomayor’s opponents: “America needs judges who are guided and controlled not by subjective empathy that they find inside themselves, but by objective law that they find outside themselves,” said Sen. Orrin Hatch (R-UT).

Hatch is one of the senators who has openly feared that Sotomayor might bring her experiences — as an outsider, an “other,” a poor kid from the projects, an Ivy Leaguer, a woman, anything but an Anglo male — to bear when she renders judgment in the highest court of the land.

“You will be free, as a United States Supreme Court justice, to basically do what you want, with no court reviewing those decisions,” Texas Senator John Cornyn told Sotomayor on the third day of her confirmation hearing. It’s not difficult to detect the fear that she will have power that he won’t be able to challenge, the ability to upset some aspect of the privilege he’s taken for granted all his life.

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Again and again, the senators appeared incapable of the kind of self-knowledge that Sotomayor demonstrated when she acknowledged that her gender and her Latina heritage might have an effect on her judging. They wouldn’t understand that a person who doesn’t acknowledge and confront his prejudices will be incapable of overcoming them. They didn’t seem to be able to accept the validity of a world view different from their own or, by implication, their inexorable march to demographic minority status.

Yet, despite all the railing against “empathy” and emphasis on the cold letter of the law, Cornyn seemed to be unaware of the irony in his remarks as he implied that the judge hadn’t shown any empathy when she rejected the firefighters’ claim (Ricci v. DeStefano) on the basis of precedent:

So you decided that … the city was justified in disregarding the exams, and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations, and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court’s opinion.

In some ways, Senators Cornyn and Hatch, Sessions and the others are right to be alarmed and fearful that Sotomayor could change the court and influence its decisions. Every new justice alters the dynamic of the court. Thurgood Marshall, the first black justice, and the first women, Sandra Day O’Connor and Ruth Bader Ginsberg, have all — not just through their arguments, but by their mere presence — given their colleagues new optics through which to view the world. And now, thanks to Justice Sonia Sotomayor, the Court will have yet another.


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  • patricia August 16, 2009 at 4:19 pm

    Hear, hear!!