As Supreme Court Nomination Speculation Heats Up, Keeping Our Eyes on the Bigger Prize

Jill Filipovic

A truly progressive legal culture - lines of legal interpretation which affirm free speech, privacy, civil liberties and protections of minority groups and views - requires building from the ground up, not just from the Supreme Court on down.

Few things excite politics junkies quite as much as an
impending Supreme Court nomination – it’s the Kentucky derby for law
nerds, with media-makers and talking heads evaluating the experience,
legal pedigrees, and even health of the country’s most prominent
judges, academics and lawyers.  But this nomination process is looking
very different from those of the past, in no small part because most of
the favorites are female.

Most commentators are placing their bets on Sonia
Sotomayor, Diane Wood and Elena Kagan, with Jennifer Granholm, Deval
Patrick, Kathleen Sullivan, Cass Sunstein and Janet Napolitano also
thrown out as possibilities. The general consensus that Obama’s choice
is going to be a woman is not a bad gamble, since women make up more
than half of the American public, one-third of all lawyers and thirty
percent of lower federal court judges, but occupy only one seat on the
current Supreme Court.  Troublingly, though, there have been murmurings
that this will be Obama’s "woman nomination," and the "racial
nomination" will be next – as if women can’t be both women and of
color, and as if the nominees will be little more than tokens.

In fact, the woman of color who has come out as the
front-runner – Sonia Sotomayor – is a politically moderate,
highly-accomplished woman who grew up in a housing project in the South
Bronx and went on to study at Princeton and Yale Law.  She’s hardly a
left-wing dream – she’s a political centrist who was first nominated to
the bench by George H.W. Bush – but she’s nonetheless already being
branded "radical," "liberal" and "activist."  Those who aren’t busy
launching the usual right-wing hit-jobs on her are relying on gendered
and racialized stereotypes to diminish her appeal, even in
supposedly progressive publications.  Jeffrey Rosen at the New
, for example, relies on anonymous mutual acquaintances to
paint a picture of Sotomayor as both a lonely single woman who takes
her law clerks to see Harry Potter movies and a domineering
loud-mouthed brown woman who isn’t as smart as she thinks she is – even
though, as Matt Yglesias says, "You don’t see a lot of dumb kids
growing up in the South Bronx and winding up at Princeton."  Rosen
admits that he is unfamiliar with Sotomayor’s judicial record, and
doesn’t bother to cite any decisions to substantiate his second-hand
claims.  At least the right-wing memo that lays out the plan of attack
on Sotomayor, Kagan and Wood actually quotes them – although again
provides no evidence for the contentions that Sotomayor "does not
have a very good temperment" and is prone to "inappropriate outbursts."

Others have written extensively about the gender and
racial dynamics of the Sotomayor attacks, and the gendered attacks on
all the potential female nominees.  It’s becoming increasingly clear
that if Obama does nominate a woman, the critiques will follow
predictably sexist lines; if he nominates a person of color, the
criticisms will be full of thinly-veiled racism.

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What’s less clear is which nominee feminists and
progressive activists should throw their weight behind.  Sotomayor (2nd
Circuit Court of Appeals) and Wood (7th Circuit Court of Appeals) are
fairly moderate; Kathleen Sullivan, dean of Stanford Law School, and
Elena Kagan, former dean of Harvard Law School, recently confirmed as
Obama’s Solicitor-General, are progressive academics, but lacking in
judicial experience.  Supreme Court justices tend to move left through
their years on the bench, so a political moderate today doesn’t
necessarily mean a centrist in later years – Justice David Souter, a
reliable pro-choice vote on the court was, after all, a Bush nominee. 
Obama has said he will not require Supreme Court judges to pass a
political litmus test, but most of the nominees appear to support
progressive views on hot-button Constitutional issues, like abortion
rights.  Wood, for example, wrote the panel decision in National
Organization for Women v. Scheidler, holding that women’s rights
organizations could use anti-racketeering laws to seek injunctive
relief against violence from anti-abortion protestors – a position that
the Supreme Court reversed.  And Sotomayor penned a very controversial
decision about the New Haven fire department’s decision to not take a
written exam into account when deciding who to promote, because the
exam had racially disparate results; white firefighters accused the
department of reverse discrimination.  Sotomayor wrote the panel opinion in that case, ruling, against the plaintiffs, that the fire
department could legally not take the exam scores into account and
simply not promote anyone.  The Supreme Court has since decided to
review the case.

Decades of right-wing
judicial appointments (with eight years of very moderate Clinton
appointments in the middle) have stacked the federal bench to lean
heavily right.  Bright and highly capable lawyers have been passed over
for judicial appointments in favor of political conservatives.  That’s
why most of the "liberal" suggestions for the Supreme Court are
actually political centrists, and the most left-leaning among them are
in academia or politics – there just aren’t all that many progressive
judges to choose from. 

That is the point we should be taking away from
this: The Supreme Court is only one piece of the puzzle, and while it’s
important for all the obvious reasons, the justices on that bench never
hear the vast majority of cases brought in the United States.  The
lower courts are the ones doing the bulk of legal interpretation, and
setting the legal standards on most issues.  The lower courts are also
places where legal talent is fostered and developed, in both the
judge’s own career and in the work of her clerks and the attorneys who
appear before her.  The U.S. Courts of Appeals in particular are
often the final decision-makers on crucial questions of law; well over
half of the sitting judges on those courts were appointed by

Of course, a Republican appointment does not necessarily
equal a conservative jurist, and there are many wonderful sitting
judges appointed by Republican presidents.  Obama also has no
obligation to choose a sitting judge for the vacant Supreme Court seat
in the first place; academics and politicians have been put on the
Court before, and many of today’s finest progressive legal minds are
professors, scholars and deans.  It may behoove him to look outside the
court house for the next Supreme Court justice. 

But it would behoove all of us for the federal courts to
be more diverse when it comes to ideology, race and gender, and to
cultivate legal talent at all levels.  Mine That Bird won the Derby
this year in a major upset in just over two minutes; the process of
picking and confirming a new Supreme Court justice will all be over in
a few months.  But the work of nurturing and advancing the most
talented competitors is an ongoing commitment.

The battles over critical Constitutional issues –
reproductive choice, civil rights, freedoms of speech and expression,
the rights of criminal defendants – are played out in court houses
around the country, and only a very few make it all the way up to our
highest judicial body.  While the fanfare surrounding Supreme Court
nominations is a necessity and the importance of that Court should not
be downplayed, progressives should take care to give equal – though
perhaps stealthier – attention to all the people Obama puts on the
federal bench.  A truly progressive legal culture – lines of legal
interpretation which affirm free speech, privacy, civil liberties and
protections of minority groups and views – requires building from the
ground up, not just from the Supreme Court on down.  Liberal lawyers,
legal scholars and organizations have done their part to protect the
civil liberties, individual freedoms and general equality that our
Constitution guarantees.  The courts – and especially the courts of
appeals – are necessary to make sure that those values are not chipped

Despite conservative hand-wringing about "activist
judges," we haven’t seen all that many liberal judicial nominations in
the past thirty years; we probably won’t get a very liberal Supreme
Court nominee this time around, either.  But from the look of the
shortlist, we will undoubtedly be getting someone intelligent and
highly competent.  And once SCOTUS fever wears off, we can get down to
the process of balancing out the federal bench – so there will be plenty
of seasoned, highly-qualified jurists in the running for Supreme Court
seats to come.

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