This article was published in the Sunday Herald on May 31, 2009.
In the five days since she was nominated to the Supreme Court by Barack Obama, Sonia Sotomayor’s life story has been reduced to a list of bullet points. It has been worn down by repetition to the essential elements of a political biography – humble origins, triumph over adversity – and lost much of its meaning in the process.
Sotomayor was the eight-year-old with diabetes whose father died a year later and whose mother worked two jobs so she could afford the only set of Encyclopaedia Britannica in the neighbourhood. She is the Latina raised in a council flat on fried pig’s trotters, rice and beans who finished top of her class at Princeton and ran the Yale Law Journal.
We have heard this tale so many times that our instinct is to dismiss it as a sales pitch. But on the number four bus across the South Bronx, through the inner city where Sotomayor grew up, its basic significance was apparent to me. To reach the pinnacle, as a working class Hispanic woman in a legal profession dominated by white men from privileged backgrounds, is an astonishing achievement.
I was the only pale face on the morning commute. Eddie Medina, a middle-aged Puerto Rican, sat down beside me. “Man, in the seventies and eighties, if you didn’t know anybody and you want to come into this neighbourhood, you’d better bring a machine gun,” he said.
He was optimistic Sotomayor’s appointment would inspire his grandchildren. “This is dissolving the limitations that hold people of colour back. And maybe, in another decade or two everyone will have the same opportunities.”
The Bronxdale Houses, a cluster of red brick tower blocks, were Sotomayor’s first home. Their enduring reputation for violence and drug-dealing dates back to the late sixties, when the Black Spades, one of the city’s most feared gangs, were formed there.
Sotomayor described her neighbours in an Associated Press interview. “There were working poor in the projects. There were poor poor in the projects. There were sick poor in the projects. There were addicts and non-addicts and all sorts of people, every one of them with problems,” she said. There are fewer burned-out buildings in the South Bronx these days, but almost half the population still lives below the poverty line.
Mike Gonzales, a Puerto Rican, was standing guard at a Korean-owned gift shop. “There are more Latinos in this neighbourhood than ever,” he said. “But now it’s third world country people, from Mexico, Ecuador, you know. There’s nothing wrong with that, because this is America and everyone is equal under God.”
“Is everyone equal under the law?” I asked him. “No. The law is supposed to be unbiased, but it’s not. Some ethnic groups always seem to have the upper hand, particularly when there’s money involved.”
On the pavement, sheltered beneath a restaurant awning, Chino Tejeda was sharing chicharron – fried pork skin – with his retired friends. “I think it will make a difference to the way the law treats Hispanic people,” he said. “It will be slow, sure, but racism’s got to end one way or the other. She is there as a balance in the system.”
Obama has made it clear that Sotomayor’s “extraordinary journey” was the clincher on a shortlist of equally capable candidates. To Democrats, this is evidence of a commitment to diversity and the principle of “equal justice under the law” that is carved over the court’s entrance. To Republicans, it is a warning sign that she will be an activist judge who will interpret the constitution according to her own concept of fairness.
There is little in Sotomayor’s record as a prosecutor, corporate lawyer or judge to indicate that she is a radical. The American Bar Association described her as a “moderate,” not a liberal.
In the one controversial ruling of her career she upheld a lower court’s decision to dismiss a lawsuit brought by a group of white firemen who had been denied a promotion because no black candidates scored highly enough on the test. It was a sensitive political case, concerning a flawed selection process, in a majority African-American town, but to her critics, the verdict exposes her as a racist. “New racism is no better than old racism,” commented former Speaker Newt Gingrich, saying she should step down.
She has also drawn fire for a speech she gave at the University of California in Berkeley seven years ago, in which she suggested that race and gender inevitably play a role in judicial decision-making. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said.
Later in the same address, Sotomayor observed that impartiality is “an aspiration because it denies the fact that we are by our experiences making different choices than others… enough people of colour in enough cases, will make a difference in the process of judging.” It will be interesting to see whether there is room for such nuanced discussion in the heat of a confirmation hearing.
In 2006, Justice Samuel Alito was subjected to bruising, partisan attacks from Democrats on the Senate Judiciary Committee. Republicans now have to decide whether an assault on Sotomayor’s credentials is worth the fallout, bearing in mind 67% of Hispanics and 58% of women voted for Obama.
From a liberal perspective, the current Chief Justice, John Roberts, has been a conservative activist judge: extending the establishment’s power, consistently ruling in favour of corporations and questioning the legality of affirmative action. In his next verdict, he is likely to strike down one of the key provisions of the Voting Rights Act, drawn up to prevent discrimination against African-Americans in the South.
As a Senator, Obama opposed his nomination, saying Roberts had “far more often used his formidable skills on behalf of the strong in opposition to the weak” and arguing that in the most difficult cases, where law and precedent do not provide a clear basis “the critical ingredient is supplied by what is in the judge’s heart.” There are obvious political advantages to picking Sotomayor, but Obama also believes he has found a soul mate.