The GOP's Pathetic Wailing Against Sotomayor's Confirmation

WASHINGTON -- The sound and the fury at Sonia Sotomayor's confirmation hearings signify almost nothing. Yet they still tell us almost everything we need to know about race and politics in the age of Obama. No matter how much drama Senate Republicans wish to concoct, it is practically a foregone conclusion that Sotomayor will win confirmation and thus become the first Supreme Court justice of Hispanic heritage, and only the third woman to serve on the nation's highest court. So as a matter of Supreme Court politics, the incendiary arguments of Sotomayor's Republican opponents amount to gruel spooned out to the party's base, shrunken and demoralized after repeated electoral losses and scandals. Unless Sotomayor suffers a "complete meltdown," Republican Sen. Lindsey Graham of South Carolina predicted, she will be confirmed. The price, though, is barely coded race baiting that has been part of the assault on Sotomayor since her nomination was announced. And it dominates the Senate Judiciary Committee hearings. The opening statement by Sen. Jeff Sessions of Alabama, the ranking Republican on the panel -- whose own bid for a federal judgeship in the 1980s was turned down because of his track record against African-American voting rights -- was a masterwork of this ancient art.

The senator pre-emptively declared that he would not vote for a judge who uses the "empathy standard" in deciding cases -- a reference to the sensitivity toward average people that President Obama said he looked for in nominees, and which has been transformed by the political right into code for favoring blacks or other ethnic minorities over whites. Sessions seemed to predict nothing short of the collapse of American law as we know it if Sotomayor is confirmed: "Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views," Sessions declared. "This is the compassionate system because it is the fair system." Undeterred by his gross historical error -- had every court in American history applied the law in this manner, schools would still be legally segregated, a woman's right to earn a living and obtain credit would still be denied, and so on -- Sessions went on to attack even Supreme Court Justice Ruth Bader Ginsburg. In an unusual broadside against a sitting justice, he accused Ginsburg of being "one of the most activist judges in history" even though a glancing look at her record shows she has been part of an almost powerless, left-of-center bloc on the court that included three men, two of them appointed by Republican presidents.

Ginsburg's affliction, then, is apparently the same as Sotomayor's: She sees the world differently than does Sessions. This is the key to understanding the unhinged argument about "empathy." It presumes that the white male experience is the only authentically American experience, and therefore the only one that could possibly be unbiased. Whatever predispositions or inclinations these men bring to the law are the valid ones. After all, they are not hampered by some silly notions they may have picked up along the way had they lived their lives as women or as members of minority groups.

We are, in a way, lucky that far from the fake theater of the Senate hearing room, a real-life racial stage show has been playing out in suburban Philadelphia. There, a private swim club kicked out a group of African-Americans from a day camp whose operators had paid to use the pool so that their young charges could cool off and frolic just like anybody else. Until the swim club reversed itself and said it would readmit the campers, it had conjured up the sort of arguments that might, to some legal arbiters, make perfect sense: There were more kids than anticipated; supervision was a concern; so was safety. If one of those campers someday rises to become a Supreme Court nominee, what part of this experience should he or she separate from the cold, hard facts of a case presented for decision? Senators who argue in the Sotomayor hearings that race -- let alone "empathy" -- should never be a factor in legal rulings would do well to look beyond the dais. They should turn their eyes not toward an awkward phrase or two in an old Sotomayor speech. They must look instead toward Philadelphia.

(c) 2009, Washington Post Writers Group

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