BOSTON — I have long been a collector of sports metaphors, but I never expected such a treasure of memorabilia to come out of a Senate hearing room. At times it sounded more like the all-star game than the confirmation of a Supreme Court justice. I could have organized an office pool guessing the number of times senators would say “balls and strikes” (13) or “umpire” (16).
The members of the Judiciary Committee riffed on the idea of judge-as-umpire. Alas, no comment could trump Alabama Sen. Jeff Sessions’ pre-hearing pitch for a “blindfolded justice calling the balls and strikes fairly and objectively.” YES! Just what we need in the big leagues! An umpire wearing a blindfold!
But this was not just jock-talk. Or a play for impartiality. It was a thinly veiled anxiety attack at the idea that Sonia Sotomayor might be a team player for Liberals v. Conservatives or, worse yet, the Girls and Latina Team v. the White Boys.
The specter haunting Sotomayor was that “Wise Latina Woman.” What seemed radical to the Republican committeemen was her hint that a WLW “with the richness of her experiences” might make wiser decisions than … THEM! She might even, as Texas Sen. John Cornyn said darkly, want to “advance causes or groups.”
This was the lineup at the hearings. Sotomayor sat stoically while a pugnacious Sessions lectured her on the role of a judge and a patronizing Lindsey Graham told her she had a reputation as a “bit of a bully.”
The would-be first Latina justice faced a committee with only two women members in order to get confirmed by a Senate with only 17 women for a seat on a court with only one other woman. And yet Sotomayor had to prove that she wasn’t biased: “Men and women (are) equally capable of being wise and fair judges.”
Also at stake — or at bat if you prefer — were the judge’s earlier musings about the importance of different life experiences: “I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on gender and my Latina heritage.” She also said: “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” A horrified Sessions called this “philosophically incompatible with the American system.”
I am, of course, charmed to see conservatives decrying gender differences as un-American since they long used differences to justify women’s second-class status. Better they should turn their wrath on talk show host G. Gordon Liddy, who said of Sotomayor: “Let’s hope that the key conferences aren’t when she’s menstruating.”
It was women who fought the idea that men and women were intrinsically different and therefore unequal. But by the time Sotomayor became a judge, more women felt free to “wonder”: Did we have to fit the (male) norm to be equal, or could we change it?
Wasn’t it OK — even important — for women to bring a different perspective to the table when talking about science, violence, business? Couldn’t they bring a different perspective to the bench when listening to Lilly Ledbetter plead for equal pay, or to a 13-year-old who was strip-searched?
A wise Latina woman doesn’t engage in a philosophical discussion while the boys are talking sports. But in my experience, when women are asked to “rise above” their experience, to ignore the difference in background, they are often being told to expunge the female and to think/work/live/rule like a man. Score one for the status quo.
Clarence Thomas, a fierce advocate for impartiality, has said with icy passion, “In order to be a judge, a person must attempt to exorcise himself or herself of the passions, thoughts, and emotions that fill any frail human being. He must become almost pure, in the way that fire purifies metal, before he can decide a case.” Compare that to Sotomayor’s comment Tuesday that we are not robots: “I think the system is strengthened when judges don’t assume they’re impartial.”
Yes, we are more than a sum total of our experiences. No, the huge majority of cases have nothing to do with race or gender, or being a diabetic for that matter. Yes, judges see through their own lens and beyond it.
But if I may revert to the sports metaphor, this judge who thinks deeply about both life and the law is ready to take the field for the Supremes.
Ellen Goodman is a Boston Globe columnist. Her e-mail address is ellengoodman1@me.com.
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