Ranking Republican Jeff Sessions threw his best punches at Sonia Sotomayor in her confirmation hearings before the Senate Judiciary Committee as questioning began Tuesday. Sessions actually backed Sotomayor into a corner, demanding that she explain her dispute with Justice Sandra Day O'Connor's famous dictum that a wise man and a wise woman judge would reach the same conclusions (yes, it was that famous "wise Latina" speech again). "I was trying to play on her words. My play fell flat. It was bad," Sotomayor said.
It was an unfortunate moment, because before that point, in the discussion of prejudice and neutrality, Sotomayor seemed to be patiently, intelligently, and clearly explaining to Sessions why he is on the wrong side of history. Maybe Sotomayor just got tired of listening to the Alabama Republican beating the same dead horse over and over again. After all, as Republican Lindsey Graham conceded in his opening remarks, unless she has a "meltdown" during these hearings, she is a shoo-in for the Court. Why bother to refight the culture wars? But the Republicans are the ones who should really hang it up. You'd think, after experiencing their own meltdown all summer, they wouldn't look a gift horse in the mouth. On police powers and Fourth Amendment issues, Sotomayor is their friend. They will be pleased with the tough-on-crime philosophy of this former prosecutor. Plus, the suggestion that she is anything less than highly qualified is a joke.
All the same, led by Sessions, conservatives are determined to take us back to the 1980s. Determined to uncover Sotomayor's hidden "racism," Sessions would not let go of his theme: that she had admitted in speeches that she would let her "prejudices" affect her rulings.
Instead, Sotomayor explained, she was exploring the ways in which judges' life experiences and unconscious biases affect them. The truth is, we are all shaped by our personal life experiences, she said. "We're not robots." "I think the system is strengthened when judges don't assume they're impartial," Sotomayor explained. Not knowing what your unconscious biases are--"if I ignore them and believe that I'm acting without them"-- does not make them go away, she gently pointed out.
Session would have none of it. The pretense that judges (until very recently all white men) can be completely neutral and objective is a cherished myth of Southern conservatives, despite the overwhelming evidence of history. It's a monument to the power of repression, really.
The exchange between Sotomayor and Sessions was particularly fascinating because of this historical backdrop. Only the third woman to even be considered for the Court was gently explaining the problem with the idea that judges live in a vacuum. She didn't go as far as she could have, though. There are copious examples of backward legal opinions, filled with embarrassing appeals to "nature" and "common sense" that show that women and minorities have an immutable, second-class status decreed by the Creator. As Sotomayor noted in that same "wise Latina" speech, "Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society."
Sessions and others like to refer to the sanctity of the Constitution and the wrongness of "activist" judges who try to impose modern viewpoints on a sacred document that should be read exactly as written. But history mocks that point of view. Culture, class, gender, race, life experience influence us for better or worse, whether we know it or not. Sotomayor's advice to judges, "know thyself," is a far better recipe for justice than a pretense of neutrality in the face of overwhelming evidence to the contrary.