Chief Justice Taney is Smiling

I'm pretty certain that several of our early-19th-century Justices shared Judge Sotomayor's belief that their race (white) and gender (male) made them particularly suitable for the elevated responsibility of serving on the nation's highest court. But, I had hoped that we had left that thinking in the past.

The lead editorial in the WSJ today prints a longer version of the quote we have all been reading:

In a speech published in the Berkeley La Raza Law Journal in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, 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."

The WSJ Editorial Board and I are not convinced.

This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.

But these men saw themselves as judges first and ethnic representatives second. Judge Sotomayor's belief is that a "Latina woman" is by definition a superior judge to a "white male" because she has had more "richness" in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the "richness" of her experience comes to believe it should be.

That nails the difference between "modern" judges and constuctionalists. I part company with Professor Reynolds pretty warily, but I see a clear case in Judge Bork's "Tempting of America." And while not many Justices have risen to the ideal, the ideal of a strict, textual reading of the Constitution cannot be abandoned.

SCOTUS Posted by John Kranz at May 27, 2009 11:18 AM