Barack Obama has made his imprint on the history of the federal
judiciary with the nomination of the first Latina to the United
States Supreme Court. Federal Appeals Court Justice, Sonia Sotomayor,
was at the top of the President’s “short list” from the time Associate
Justice David Souter announced his retirement.
had been a very heavy lobby to appoint a Latino, and the feminist
lobby suggested that the court was going backward instead of forward
after baby Bush didn’t replace retired justice Sandra Day O’Conner
with a woman. Justice Ruth Gingsberg has also signaled that she
doesn’t appreciate being odd woman out in the nation’s highest and
most exclusive grumpy old male’s club.
Court picks usually come with a lot of scrutiny for the nominee
and political grief for the President. Criticism will not be avoided.
However, Justice Sotomayor represented a “two-fer” for President
Obama and had the potential to quail criticism from two significant
stakeholder groups, women and Latinos. He couldn’t have made a safer
pick in the selection of Sotomayor.
usually means “status quo” went it comes to judiciary selections.
This month celebrates the 55th anniversary of the Brown decision,
the last time this country engaged a major culture shift stemming
out of the
courts. Since that time, this country has engaged in a 50 year battle
to avoid what pundits called “judicial activism,” courts that seek
to interpret the law based on contemporary cultural interpretation—not
“original intent” of the law or even legal precedence. Original
intent theorists offer judicial views based on how the law was interpreted
when originally wrote—no matter when it was written. So laws formulated
when the Constitution was ratified over 220 years ago offer opinions
that excluded ethnic minorities and women, and affirmed cultural
norms as slavery and segregation as legal.
California Governor Earl Warren changed the whole temperament of
a right leaning high Court in 1952 when he was appointed Chief Justice
in the midst of the most controversial case of the twentieth century,
a case to desegregate public schools. In the aftermath of the Brown
decision came a ten year massive resistance movement, attempts
to repeal the decision, attempts to impeach the Chief Justice and
attempts by Congress to affirm cultural norms through a public “manifesto”
to offset what they called attempts by the Court to overreach into
the legislative branch of government by “legislating from the bench.”
that time, there has been a high and low, day and night watch for
the appointment of “judicial activists.” The calls of “activist”
have already been waged. Sotomayor doesn’t fit that bill. She could,
given her “raised from a single parent” background (which is what
conservatives fear), inasmuch as she certainly would have certain
sensibilities toward poor and disadvantaged people. But she was
appointed by a conservative (Daddy Bush) and elevated to the federal
appeals court by a centrist (Clinton), it would be a difficult argument
to frame Sotomayor as an activist jurist.
is visionary about the pick is that Sotomayor is a reflection of
the nation’s future, given the projected growth of Latinos, and
not rooted in the ideological conflicts that have torn up the country
the past 30 years. At 54 years old, Sotomayor will sit 30 years
(if her health holds up) right beside an ideologue, Chief Justice
Roberts, also in his mid-fifties to counteract attempts to stranglehold
the Supreme Court in a judicial restraint mentality.
was a visionary pick to try and bring some semblance of gender balance
to the Court (though they have a ways to go on that one). However,
most important about the selection was that it was a “gimme” in
terms of what Obama was expecting, in terms of Supreme Court picks.
He will still get four more, in he serves eight years, as the older
members of the court in their late seventies and mid-eighties will
certainly give way to younger replacements over the term of the
Obama administration. While the look-out for activist jurists will
not stop, a Democrat controlled Congress and a desire to have a
Court that looks like America, will aid President Obama’s vision
to bring the Supreme Court into the 21st Century. In that regard,
it was the one of the safest visionary picks he could have made.
Dr. Anthony Asadullah Samad, is a national columnist, managing director
of the Urban Issues Forum
and author of Saving The Race: Empowerment Through Wisdom. His Website
is AnthonySamad.com. Click here
to contact Dr. Samad.