Stanley I. Kutler: The Supreme Court: New Face, Old Arguments

Roundup: Historians' Take

[Stanley Kutler taught constitutional and legal history at the University of Wisconsin.]

The President has chosen Sonia Sotomayor for the Supreme Court. Of the reported finalists, she appears to be the easiest choice for confirmation. Sotomayor has the "right" gender, ethnicity, and experience; nevertheless, we can expect the Republicans to mount an "ideological" opposition, perhaps less strained for this nomination, but in what has become the familiar pattern of challenging Supreme Court nominations.

Barack Obama has cornered his conservative critics. George H. W. Bush first appointed Sotomayor to the federal bench, and then William J. Clinton elevated her to the 2nd Circuit Court of Appeals. The Senate has confirmed her twice, with 8 Republicans supporting her as the appellate court nominee. Life narratives are compelling, and Sotomayor clearly has one, perhaps side-by-side with the President's -- and Clarence Thomas.

What now is so familiar, does not have much of a historical track record, and in fact, before 1968, was clearly the exception rather than the rule. Supreme Court nominations only rarely resulted in contentious confirmation battles. Franklin D. Roosevelt chose nine men for the Court, and only Hugo Black's nomination in 1937 aroused significant opposition because he briefly had belonged to the Ku Klux Klan. But that was not enough to bring down a nominee at the time, especially as Black was the sitting senator from Alabama -- whose prior experience had been as a night court judge.

Woodrow Wilson's selection of Louis D. Brandeis in 1916 probably is the quintessential precedent for what we now have become to expect. Brandeis was a prominent public figure -- the "people's lawyer" -- who had challenged a wide array of vested interests and had the distinction of being the first Jew nominated to the Court. Brandeis's public record and no doubt his ethnicity brought out the Harvard establishment and its minions to wage a vigorous opposition, not too dissimilar from the "cultural" conflicts generated by recent nominations. Brandeis won confirmation, and had a very distinguished career, one greatly admired for its independence and judicial craftsmanship. Brandeis incidentally had no "prior judicial experience," neatly illustrating its unreliability in predicting a later record.

The inevitable debate now will begin, and as so often, we can thank Richard Nixon, the Uncrowned Father of our Cultural Wars. During his successful presidential run in 1968, Nixon demonized the Warren Court, roundly denouncing it for being "soft" on "law-and-order." As president, after announcing his selection of Warren Burger (a lower court judge), to succeed Earl Warren, Nixon explained his "judicial philosophy" to reporters. Nixon claimed he was a "strict constructionist." Once a clearly understood term in scholarly political discourse about the Constitution, Nixon employed it as code language, and it became a pliant phrase, grist for political exploitation and manipulation.

Racist politicians now wrapped themselves in a convenient slogan. After Brown v. Board of Education in 1954, they re-discovered their heritage when they invoked "strict construction," for it had been the language of John C. Calhoun. other apologists for slavery, and the Supreme Court in its infamous Dred Scott decision a century earlier. In the early days of the American republic, Thomas Jefferson and Alexander Hamilton locked horns in a famous debate in George Washington's cabinet, with Hamilton advocating "broad construction," while Jefferson, responsive to local interests, preferred "strict construction." Hamilton won, of course, and in the stream of history, Jefferson's own expansive views of his constitutional powers as President belied his "strict construction" argument. (Today's Republicans might ponder George W. Bush's "broad construction" of presidential powers.) The hollow history of "strict construction" is not very enviable.

Ironically, Nixon's use of "strict construction" was new for him, and it was the philosophy of a zealous convert. In 1962, when the Supreme Court struck down state-mandated requirement of prayers in public schools, Nixon said he "had no intention of criticizing" the prayer ruling. In the next breath, Nixon typically complained that the Court had "followed its usual pattern of interpreting the Constitution rigidly"; he denounced the judges for their narrow, "strict construction" of the Constitution. Justice Hugo Black, who wrote the opinion, must have smiled for he would have readily agreed that he had strictly applied the Constitution's command against "no law respecting an establishment of religion."

The Republicans' assistant leader, Senator Jon Kyl (R-AZ) recently announced he may start a filibuster against any Obama nominee who makes decisions "not based on the law or the merits, but on his or her feelings, emotions, and preconceived ideas."

Sotomayor's own remarks about her sex and ethnicity are being re-cycled for the Right-Wing Attack Machine. She has said that a judge's ethnicity and sex "may and will affect our judging" -- almost as if she had anticipated Kyl's remarks. She went on to add that she hoped 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." Maybe. Kyl meanwhile now has his reasons for a predictable reaction. Undoubtedly, he wanted someone with "prior judicial experience," and he probably will have one with a particularly valued, diverse, and yet undoubtedly unmatched experience that goes into the making of a judge.

If laws were clear and self-interpreting, then why have judges at all? Judges match facts to the law, but judging is no mechanical task. Over seventy years ago, this country recognized that "mechanical jurisprudence," or "slot-machine" justice, was illusory; outcomes derive from human judgment, both in the writing and the interpretation of the law. Do judges "make" or "interpret" law? Of course they do; silly question, but one unfortunately raised in public discourse. Do "feelings" and "emotions" enter the process? We can certainly find them in the present Supreme Court majority.

When Kyl enthusiastically voted for Justice Samuel Alito, he knew that Alito had well-publicized, well-recorded judicial feelings on the issue of abortion? They did not disqualify him.

Could Kyl have had in mind his faithful ally, Justice Antonin Scalia -- no "feelings, emotions, and preconceived ideas?" Scalia, of course, has consistently demonstrated contempt and rejection for anyone who disagrees with him -- whether of the so-called "liberal bloc" or even his sometimes-concurring Justices, Sandra Day O'Connor and Anthony Kennedy. Are we to believe Scalia had no "feelings, emotions, and preconceived ideas" when he voted in cases involving habeas corpus for Guantanamo detainees, cruel and unusual punishments for either juveniles or the mentally retarded, the use of marijuana for medicinal purposes, and, of course, the Florida Supreme Court's decision to order a recount in the presidential election of 2000?

Sotomayor's judicial experience -- an experience surely tempered by her gender and ethnicity -- gives us a potential Justice who has dealt with ordinary folks: litigants, prosecutors, defense lawyers, accused and victims alike. No Supreme Court Justice today has had such experience -- none.

Perhaps Sotomayer's "feelings" and "emotions" are different than Sen. Kyl's. But she certainly echoes Justice Oliver Wendell Holmes's memorable remarks about judging: "The life of the law has not been logic," Holmes wrote, "but experience. The felt necessities of the time, the prevalent moral and political theories," Holmes went on, "even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

Sotomayor's experience should be welcomed. She has worked within a framework of the Constitution and the law; the Republic will not then fall, nor will the Constitution.

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