Why It Matters Who You Are When Acting on Behalf of the Public

As I've written previously, we are all constructed by identities: gender, race, religion, ethnicity, region, family style and makeup, and class. To ignore these aspects of character is stupid, especially now, when we have so many personal narratives that explore how different experiences bring perspective to decision-making. As a country of immigrants and misfits, too long we have allowed white men to make all public, and too often, private decisions.

Not anymore.

Just as we might not know what aspects of President Obama's character derive from his white mother or his African father, we also know that his experience in the world was heavily influenced by the fact that he is bi-racial. He wrote an entire book on claiming his identity: Dreams From My Father.

Sonia Sotomayor is Obama's nominee to replace David Souter as associate justice on the US Supreme Court. Her perspective has been forged from the experiences of being a woman, growing up Puerto Rican, attending elite schools where Puerto Rican women were more likely to be the custodians and housekeepers than the students, and being first a trial court and then an appellate judge. Her moderation appeals to our president. That there should be more than one woman on the US Supreme Court appeals to me. I won't be satisfied until half the court is comprised of women!

There is a fascinating interview with Associate Justice Ruth Bader Ginsburg in the upcoming New York Times magazine section that you can access now. It's long, but it's interesting, because Justice Ginsburg has spent her lifetime being a woman in places where women weren't intended to feel comfortable. As women, we all understand that feeling of being an outsider, of having to prove ourselves not according to the rules, but to defy some unspoken assumptions of incompetency. I remember being a young attorney and how many opponents assumed that I was sleeping with a partner, or was available to anyone with any power. I can't imagine the confluence of gender and race or ethnicity on the challenge of competency. Listen to the critics of her nomination and then think about what they are saying and why.

The Next Supreme

At his press conference last week, President Obama described what he is looking for in a new Supreme Court nominee: The process of selecting someone to replace Justice Souter is among my most serious responsibilities as president. So i will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook, it is also about how are laws effect the daily realities of peoples lives--whether they can make a living and care for their families, whether they feel safe in their homes and welcome and their own nation. I view that quality of empathy, of understanding and identifying with peoples' hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek someone who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role....

The emphasis added comes from Talking Points Memo.com.

Obama's emphasis should be on a young, experienced, vital, intellectually powerful, articulate, and not a compromise, but a bold appointment.

Obama should not bother being bi-partisanship. Look at the Elena Kagen vote for Solicitor General! Former Dean of Harvard Law School and the vote was still unprincipled: 61 yeah, 31 nay. Only 7 Republicans voted for this highly competent candidate to represent the United States in appearances before the US Supreme Court.

In by-gone years, not all nominees to the Supreme Court had judicial experience. Take Earl Warren, former governor of California and an Eisenhower appointment. One of his first decisions was Brown v. Board of Education, written without footnotes and legalese, because Chief Justice Warren understood how important it was to have the decision printed in every newspaper in the United States. He wanted the language and reasoning to be accessible.

And there was William Rehnquist, who never served on a court before his nomination by Richard Nixon as associate justice. Rehnquist had served in the Justice Department during the turbulent anti-war years, when surveillance of students, laborists, and other protestors was rampant. there is even evidence that he might have lied at his confirmation hearings as to his role in opposing the overturning of state-enforced segegation in Brown v. Board of Education when he was clerking for Justice Jackson.

Supposedly President Obama is looking for another woman since only Ruth Bader Ginsburg is currently serving. Elena Kagen would be an excellent choice, but the likelihood of having two Jewish women on the high court seems impossible.