By Steve Bergstein | Psychsound
When Barack Obama was elected President last November, the first thing I thought about was the Supreme Court, the one branch of government that has final say on the meaning of the U.S. Constitution and federal laws. It is the Supreme Court that breathes life into the First Amendment, religious freedoms, protection against police abuses. Without a Supreme Court that cares about these values, this would be a very different country.
President Barack Obama has tapped federal appeals judge Sonia Sotomayor for the Supreme Court. AP Photo.
I don't have any real expectation that President Obama is going to stop the war in Iraq or maintain a foreign policy that respects democracy or human rights. None of the other presidents gave a damn about these things, and the system is too corrupt for an independent president to chart a different path. But I knew that Obama would make a difference in his judicial appointments; any choices by Obama would be an improvement over George W. Bush's Supreme Court picks.
We forget that the Constitution and federal laws can be interpreted in different ways. Two highly intelligent judges can see things differently, and even men and women of good faith can find themselves on opposite ends of the most profound legal issues of the day. This is why many Supreme Court cases are decided by a 5-4 or 6-3 vote. Few decisions are unanimous. When you consider that every case that reaches the Supreme Court originated in the lower federal and state courts, the same issue may have been chewed over two or three times by different judges as the case made its way to the Supreme Court. The law is so malleable.
For the most part, Supreme Court rulings are final. While the Court can reverse itself on the same legal issue, that will not happen right away; it takes decades for the Court to reexamine one of its precedents. If the Court says that a particular practice violates the First Amendment, then that corner of the legal system is settled for a long time.
Obama must have thought about this in appointing Sonia Sotomayor for the Supreme Court. Unlike the subliterate who occupied the Oval Office for eight years prior to Obama's election, Obama is an extremely intelligent man who taught constitutional law at the University of Chicago Law School. It was that work experience which made Obama such an attractive presidential candidate. Few presidents really understand what the Supreme Court does and its impact on American society. Having taught in this area, Obama knows exactly how the Supreme Court works.
I would have been devastated had a Republican president been able to replace David Souter on the Supreme Court. Souter was an unknown entity in 1990 when the first President Bush appointed him to replace the great Justice William Brennan, one of the greatest champions of individual liberties who ever sat on the Court. We all worried that Souter was a conservative who would help the other right-wingers on the Court roll back the clock on civil rights. Souter turned out to be one of the best Supreme Court justices we ever had, a truly independent mind who consistently questioned untrammelled presidential war powers and stood up for free speech and other constitutional rights over the course of nearly two decades on the Court. The possibility that Souter could have been replaced by his ideological opposite would have been too much for me to bear.
As a civil rights lawyer who practices in the federal courts in the Second Circuit, where Sonia Sotomayor serves as an appellate judge, I have argued five or six cases before her over the years. As a blogger who covers the civil rights decisions of the Second Circuit of the federal courts
, I am also one of the few lawyers who reads or at least scans most of the decisions coming out of that court. Obama could not have made a better choice. True, Judge Sotomayor has ruled against my clients in several cases involving First Amendment and other constitutional challenges. Those are the breaks, as much as I may have disagreed with her rulings. Any lawyer will tell you that you cannot win every case and that even fair judges can see things differently. The question is not whether she always rules for civil rights plaintiffs; the question is whether she will uphold the tradition of strong civil liberties in this country in the face of many, many forces in U.S. society that want to take us in the opposite direction. Having read her decisions on civil rights and liberties over the years, I can tell you that she will.
You will hear a lot about Judge Sotomayor over the next few weeks. Some of it true, some of it false. Some people will object to repeated references to her personal history. Sotomayor grew up in the Bronx and managed to attend Princeton University and Yale Law School despite every disadvantage a young woman from the public housing projects can be expected to endure. I'd like to see you go to Ivy League schools coming from these circumstances. This background is a plus. Too many federal judges wanted for nothing their entire lives and knew nothing about hardship.
Ugly anonymous comments about Sotomayor made their way around the Internet when her name first surfaced as a possible Supreme Court nominee. Some low-lifes said that she did not have the required intelligence. As one who has actually read her opinions, I can assure you that's not the case. Even when she has ruled against my clients, she has done so with great intelligence and scholarship. While others correctly pointed out that Sotomayor is a tough judge on the bench -- and believe me, I've seen that side of her -- that's exactly what I want in a Supreme Court justice. Someone who asks tough questions and tries to get to the bottom of things.
Conservatives will object that Sotomayor's background is part of the nomination story. How can it not be part of the story? Growing up in the housing projects to a single mother is quite different from growing up in an upper middle class household in the suburbs. Interpreting the Constitution and federal laws is not a robotic exercise. Human beings make these decisions, based on our values; and we live with them. Over the last few years, I have seen the conservative majority on the Supreme Court chip away at individual liberties and overturn precedents in order to advance the conservative, authoritarian cause. This reactionary rollback has got to stop. Thank God that Obama gets to appoint a real human being to the Supreme Court. The Court will be ours again someday. By herself, Sotomayor will not tilt the balance in our direction; she's replacing a liberal, not a conservative. But we are going to turn that ship around, and it's going to start right now.