by David A. Schulz

The recent hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court highlight certain points of disagreement in the public discourse on the law. The Republican Senators have unsuccessfully spent most of their effort trying to convince us that she is personally unsuited for the post (she’s too aggressive with lawyers, too biased in her interpretation of the law). In contrast, the Democrats have spent most of their effort telling her story, and praising her qualifications. You’d think that the hearings hung on her personal qualifications. But if this were the case we wouldn’t have had such a struggle. She is far and away the most qualified candidate for the Supreme Court that has been nominated in my lifetime. What is really at stake is an understanding of what the law is, and an unwillingness to seriously examine who benefits from its enactment.

Everyone knows that it makes a difference how the law is interpreted — all the difference in the world. Conservatives are inclined to believe that the law is clearly set forth in documents such as the Constitution, and resist what they call "activist judges" who do not enforce the law as the Constitution or the Congress intended. The theory goes that it is the role of the Congress to pass laws and the role of judges to enforce them. An activist judge imposes her own perspective on the process. In conservative thinking, the ideal situation is the objective law and an impartial judge interpreting it. The contradiction implied in the word "interpret" is glossed over. People who view the law this way are, generally speaking, those who have benefited most from its implementation. As the French philosopher Anatole France observed, "The law in its majesty prohibits the rich as well as the poor from sleeping under the bridges of Paris."

Now, we all know that judges do not rule alike even though they interpret the same precedent. See, for example, the numerous Supreme Court decisions establishing the legality of Roe v. Wade. There would really be little need for a hearing if every judge could be expected to rule the same way on such issues. I’m somewhat disappointed that Judge Sotomayor backed away from her out of court remarks to the effect that a female Latina judge could decide some things better than a white male judge. She will certainly see things from a different perspective, and sometimes a more humane perspective. It seems obvious to me that this is likely in some situations — say in the case of the thirteen year old girl who was strip-searched by her high school administrators because she was suspected of drug dealing, or in cases such as white males bringing charges of "reverse discrimination." As she told the Senate Judicial Committee, she is no automaton. She brings to every case her experience as a young impoverished girl growing up in public housing. No other judge has both experiences.

The Republicans accused her of compassion and sympathy, which seem to me to be virtues rather than vices — particularly when it comes to the law. The issue is not whether a judge should ignore her experience or identify with those who share it; it is rather that she should not let her ideological bias blind her to close scrutiny of the issues.

Few conservatives object when corporations decide to establish their legal headquarters in Delaware because Delaware courts understand — shall we even say, are sympathetic toward — corporations. For many decades corporate law has been refined in Delaware by the interests of corporations. Precedents have been established over the years that make it desirable to have their cases tried in Delaware courts.

One of the most egregious precedents established nationwide is the legal definition of a corporation as a person, thus granting it the right of free speech and protecting its ability to buy — through legal donations — representatives at all levels of government that are perceived to be sympathetic to its cause. Everyone knows that we have the best government money can buy, and this discouraging fact was made possible by legal precedent. When you have wealth and power, you don’t have to break the law, you can change it to suit your needs. The Supreme Court as presently constituted has considerable experience in corporate litigation. This corporate bias was increased by the two most recent conservative appointments under President George W. Bush. A nation that is truly "of the people, by the people and for the people" has yet to arrive on this earth — although we have made pretensions in that direction for over two centuries, and in our best moments, we go a long way toward realizing it.

Like it or not, the "law in its majesty" is a creation of human minds that see things differently. Judge Sotomayor will bring to the court invaluable experience not only as a lawyer and judge but also as a human being, who because of her gender and upbringing will interpret the law differently from most of her male colleagues — and perhaps also may differ from her female colleague. This is a virtue, not a vice. Democratic law in its finest expression does not depend on value consensus, but rather on vigorous open debate. The legal precedents set by the court will be more humane because they will better reflect the experiences of those who are bound to obey them.

President Barack Obama seems to hold a similar view of the law when he writes in his book, "Dreams from my Father: A Story of Race and Interdependence."

How do we transform mere power into justice, mere sentiment into love? The answers I find in law books don’t always satisfy me — for every Brown v. Board of education I find a score of cases where conscience is sacrificed to expedience and greed. And yet, in the conversation itself, in the joining of voices, I find myself modestly encouraged, believing that so long as the questions are still being asked, what binds us together might somehow, ultimately, prevail.

The fundamental problem behind ultra conservative thought is the certainty that the law that has been enacted by the courts is sacrosanct — except in those cases where the law goes against its interest. Then conservatives will also call for change. If Judge Sotomayor is confirmed, she will be the third female in history to serve on the court and the first Hispanic. That the court has been so dominantly composed of white males is a classic example of a great structural injustice in our society that can only be redressed by the appointment of more female and minority judges.