Right Wing v. Judge Sotomayor

by Joe Auciello / July 2009

If President Obama could have foreseen the controversy over his nomination of Judge Sonia Sotomayor to the Supreme Court, he might well have nominated her even sooner. Not that the president expects this Latina judge to champion the causes of minorities and the poor. As one profile of her noted, “Sotomayor may disappoint activists on the left who were hoping that Obama would choose a two-fisted progressive…” (Time, June 8, 2009).

Mr. Obama said much the same, though with far less candor, when he explained that Judge Sotomayor “understands that a judge’s job is to interpret, not make, law.” The president was trying to downplay Judge Sotomayor’s two most controversial comments: that “policy is made” in the court of appeals, and a widely-circulated excerpt from a 2001 speech in which she said, “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

When Sotomayor’s nomination was announced in May, the conservative movement, reeling from defeats and divisions within its ranks, sensed an opportunity for an easy victory against a vulnerable target. With overheated rhetoric, complete with ethnic slurs and slander, designed to galvanize a right-wing base sorely in need of a rallying point, the far right Republicans went on the offensive.

Talk-show host Rush Limbaugh compared Sotomayor to David Duke, a former leader of the Ku Klux Klan. Former House speaker Newt Gingrich called her a “racist,” while former Republican Party presidential candidate Pat Buchanan labeled her “an affirmative action baby.” By comparison, Fox’s Sean Hannity seemed almost moderate when he claimed that Sotomayor was part of the “far left” and that her positions on race put her at odds with Dr. Martin Luther King Jr.

These were not thoughtless words spoken in the heat of the moment, at least not judging by the smears that were published in the print media. One writer in the National Review complained about Ms. Sotomayor’s name: “[P]utting the emphasis on the final syllable of Sotomayor is unnatural in English.” The magazine also used words like “dumb” and “obnoxious” to describe her. Again, by comparison, a New Republic author seemed almost moderate when he called the summa cum laude graduate of Princeton and Yale Law Journal editor “an intellectual lightweight.”

Despite the ferocity of the verbal assault, and perhaps because of it, the repulsive right-wing attack backfired. Sotomayor endured taunting by powerful white men that was so dishonest, so sleazy, that Americans in large numbers turned away in disgust from the crude racism of the Republican Party’s unofficial leaders. These attack dogs had lunged too far on their leash. When popular opinion yanked them back, they had little choice but to slink away in silence.

Surveying the retreat, Congressional Republicans were forced to distance themselves from their unhelpful allies. After all, Republicans are well aware that Latinos are the largest growing minority in the United States and even more aware that their presidential candidate in 2008 won less than a third of the Latino vote.

The groundswell of sympathy for Sotomayor strongly affected the left-liberals, social-democrats, and the Communist Party. Their battle cry is “Support Sotomayor, defeat the right!” On its website, the Communist Party even suggests ways that its supporters can help Sotomayor win the Supreme Court nomination.

This false logic—the enemy of our enemy must be our friend—attempts to find a common agenda or program where there is none. It is proper and necessary to oppose the racist attack on Sotomayor, but it is wrong to lend her political support. This strategy chains the left to its lesser-evil enemy, the Democrats, and stifles the development, on the political field, of an independent, working-class organization.

Real hope for progress and change requires an entirely different strategy. The Supreme Court does not initiate social change; it ratifies the changes taking place in the society at large. It is wishful thinking, then, to place one’s hopes on this or that court appointee.

In 1973, abortion rights for women were not granted because a majority of the Court was female. In fact, the first female Supreme Court justice was only appointed eight years later by Republican President Ronald Reagan. Women in the United States won the right to abortion because of the strength and depth of the feminist movement. Women’s liberation was a cause that profoundly transformed American culture in every sphere of life. The Supreme Court recognized this social change in 1973.

The famous Brown v. Board of Education of Topeka ruling that outlawed segregation in public schools confirms the same point by different means. Following the Court’s decision, American schools did not desegregate with all deliberate speed. The Court’s decision was brought to life by the growth of a powerful civil rights movement, which created progressive change in American society.

Where a civil rights struggle was weak, such as in a Northern city like Boston, segregation was firmly entrenched 20 years after the Supreme Court’s ruling. Again, a powerful social struggle was required to bring words to life.

The U.S. legal system today is hardly—and has never been—the fair and neutral arbiter that its supporters claim. As left-wing attorney William M. Kunstler observed, “The law is nothing other than a method of control created by a socioeconomic system determined, at all costs, to perpetuate itself by all and any means necessary, for as long as possible.”

The belief in some court-appointed savior is a self-delusion. Real change results from the hard work of political organizing in communities, unions, social movements, and the society as a whole. The courts protect the overall interests of the ruling class. That this class consists largely of white males is entirely to the point. So, despite 17 years on the bench, including 11 years on the Second Circuit Court of Appeals, a Latina woman nominated to the Supreme Court must still pass a loyalty test to prove that her heart and mind align, not with her gender or ethnic group, but with the rich and powerful men the law was created to serve. Her judicial record must show that she will not be particularly friendly to women, Latinos, or the working class.

Since Obama presented Judge Sotomayor as his nominee, all her public statements and the statements of her political allies have gone to placating the fears of the right. Senator Patrick Leahy (Dem.-Vt.), the chairman of the Judiciary Committee, quoted her as saying to him “‘as a judge you follow the law.’ … And she said, ‘ultimately and completely’ a judge has to follow the law no matter what their upbringing has been” (The New York Times, June 3, 2009).

The democratic ideal of “equality before the law” is all too often undermined by the reality of social inequality. Justice, willfully blind, fails to see the effects of poverty and discrimination and fails to weigh the consequence of oppression and opportunity denied. The rhetoric of equality, loudly proclaimed by every politician of the ruling-class parties, justifies and perpetuates a society founded on inequality, and on ethnic and class oppression.