Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and civil rights lawyer. She is a regular contributor to The Root.
It was almost a relief when Alan Dershowitz gave voice a week ago to the racial and gender subtext of much of the hand-wringing about President Obama's then-imminent (and presumably empathetic) Supreme Court nominee. Dershowitz cautioned that President Obama should select a justice from among the "greatest legal minds in the country," rather than focus on bringing gender balance or greater racial diversity to the court. One can always count on Dershowitz for this kind of offense—one that in its candor actually releases a good deal of tension and gets the conversation down to the nitty-gritty.
The question of whether President Obama is sacrificing quality to fill a quota (the old affirmative action saw) was bound to come up, and in fact has been rumbling beneath the surface of nominee-speculation discussions since Justice Souter's resignation. Much of the attention centered on his eventual pick, Judge Sonia Sotomayor of the Second Circuit Court of Appeals (the Anglo-Saxon name of 9th Circuit Judge Kim Wardlaw, the first Latina appointed to a federal court of appeals, may have initially thrown some off). First were the leaked Republican talking points about Judge Sotomayor—the GOP would apparently emphasize the judge's alleged "temper" problem. An article by Jeffrey Rosen in the Atlantic based almost entirely on anonymous sources advanced the ball even further—Sotomayor has a temper problem and, he suggested, isn't regarded as very bright. Rosen's thinly sourced piece has been ably deconstructed by a number of commentators. But its effectiveness lay precisely in its play to pre-existing stereotypes about Latina women. Is it journalism and analysis to report that a Puerto Rican woman is rumored to be fiery and unintelligent?
It's offensive, without a doubt. One can't help but wish that public discourse would depart on occasion from this same script. But I have to tell you that those of us who are women and racial minorities also laugh at the predictability and futility of this line of attack. As announced this past week by the Hispanic National Bar Association, there are 14 Latino judges on the federal courts of appeal, 57 on the federal district courts, and 11 serving on state Supreme Courts. The list of qualified Latino judge candidates is long. All are fully qualified to serve on the nation's highest court. Among them, Judge Sotomayor's resume, especially the range of her legal experience and accomplishments, is particularly impressive.
The field of qualified black candidates and women of all races is also deep. Any black woman who has managed to rise to become chief justice of the highest court of a southern state (as Judge Leah Ward Sears and Judge Peggy Quince have in Georgia and Florida, respectively) has probably confronted and overcome considerably more obstacles than stale Republican talking points about temperament and intelligence.
But I'd like to push even harder against an insidious presumption in the "unqualified minority" charge. That is the pass being given to the 108 white men who have been nominated to and served on the court, many of whom were not selected because they were "the most brilliant legal minds of the day." Few would have described three-time California Gov. Earl Warren that way in 1953 when he was selected by President Eisenhower to replace Chief Justice Fred Vinson. But the role Warren played in leading the court during the difficult decision in Brown v. Board, unifying a fractured court into a unanimous decision in that case, and in Cooper v. Aaron, the Little Rock Nine case three years later, demonstrated the political skills desperately needed for a court facing one of the most contentious periods in the nation's legal history.
Justice Frank Murphy may not be remembered as one of the most brilliant legal scholars in the history of the court, but he had the good sense to get Korematsu right, fearlessly identifying the racism at work in the exclusion and detention program and dissenting from the decision of the six-member majority that upheld the internment of Japanese-Americans during WWII. Chief Justice Roger Taney, on the other hand, was uniformly regarded as a brilliant justice. He had served on the highest court of his home state of Maryland, and had been U.S. attorney general and secretary of the treasury before being elevated to the Supreme Court. But his decision in Dred Scott v. Sandford doomed thousands of black slaves and freedmen to a stateless existence within the United States until the passage of the 14th Amendment. Justice Taney's coldly self-fulfilling statement in Dred Scott, that blacks had "no rights which the white man [was] bound to respect," has ensured his place in history—not as a brilliant jurist, but as among the most insensitive.
And who can argue with the intellectual power of Justice Oliver Wendell Holmes? But his decision in Buck v. Bell, to uphold the sterilization of an 18-year-old white woman who had a child out of wedlock, and who was accused [falsely] of being congenitally retarded, with the cruel and cavalier observation that "three generations of imbeciles is enough," stands as a powerful rejoinder to those who critique President Obama's insistence on appointing a justice with "empathy."
In short, the history of our Supreme Court is not an unbroken account of brilliant white men making brilliant decisions. Instead, Supreme Court nominees have often become justices over time and in response to the exigencies of court life and the cases that come before them, sometimes finding deep wells of intellectual and moral force in their decision making. In other instances, otherwise brilliant justices were unable to translate their intellect into the kind of visionary and humane decision making that marks a truly great Supreme Court justice.
Sotomayor may or may not be regarded one day as a great Supreme Court justice. She's certainly got all the intellectual heft, experience, and potential for empathy she needs to become one. But in the coming days we would do well to remember that the history of the Supreme Court includes the contributions of a range of white men [and two women]. Some, when they were nominated, were not regarded as the leading legal minds of their day but managed to become great within the crucible of the court. Still others, despite their widely recognized intellectual firepower, fell short of true greatness. Sotomayor should be held to no higher standard than that set by the 110 justices who've come before her.
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