(The following piece appeared in the July 8, 2009, edition of The Roanoke Times.)
As soon as President Obama nominated Sonia Sotomayor to succeed Justice David Souter on the Supreme Court, the chattering classes began protracted discussions about the role that race, gender, empathy, etc. should play in court nominations. Those who support her nomination celebrate the potential diversification of the court. Those who oppose it condemn her for joining women’s groups, having the chutzpah to advise a group that opposed Robert Bork’s nomination to the court many years ago, or suggesting that one’s life experiences will and should play a role in how he or she interprets the law.
Sadly, Supreme Court nominations have become a terrible stain on our politics. Does anyone doubt that a key basis for a judge’s nomination is whether or not the president and his advisers like him or her? If a nominee wants to be appointed, he or she has to demonstrate, more than anything else, patience with the speechifying and campaigning emanating from the Senate Judiciary Committee. Politics (of the Senators and the interest groups who flood their mailboxes) determines a nominee’s fate as much as his or her qualifications.
Critics question whether Sotomayor is the “most qualified” nominee. This strategy is as disingenuous as it is unproductive. A fairer and more honest inquiry would ask whether any nominee could ever claim to be the most qualified at the time of his or her nomination. An honest answer to this question would acknowledge that there are perhaps hundreds of potentially legitimate nominees at any given time. The successful one is the one who can navigate the politics of the appointment process.
It would be unwise and destructive for Sotomayor ‘s opponents to overplay a weak hand and, essentially, re-fight the battle over the nomination of Robert Bork. The Bork debacle remains a sordid episode in the history of Supreme Court nominations. Bork certainly was qualified to be on the court. Politics kept him off.
Bork would have added diversity to the court’s thinking in the same way that Sotomayor’s supporters suggest she will. Whether Bork would have pulled the Supreme Court to the right or Sotomayor will pull it to the left is irrelevant. Members of the Court who drift too far to the extremes tend to find themselves writing lonely dissenting opinions. That is a good thing.
A court of nine should not be of one mind, one color, one gender, etc. Diversity of opinion is vital to the development of constitutional law and politics. Dissent and debate among the justices have played a vital role throughout the Supreme Court’s history. Those who fear such debate within the court should pause to ask themselves one important question: Why did the Founders choose to create a plural court? They could just as easily have called the third branch of government “The Supreme Judge.” But, they did not. Apparently, they appreciated differences of opinion.
Partisan divisiveness has poisoned or threatened to poison every Supreme Court nomination hearing since the Bork debacle. Re-fighting that sordid episode while deciding the fate of Sonia Sotomayor will demonstrate that the Senate learned nothing from the unproductive ugliness of the Bork nomination. Let’s hope this does not happen.
Mark Rush is Robert G. Brown Professor of Politics and Law and head of the department of politics at Washington and Lee University.