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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