Adjudication with Representation

She had a compelling life story, Ivy League credentials and a track record on the bench. She was a Latina. She was a woman. She checked “each of the grids,” as Mr. Obama’s team later put it. And by the time the opportunity arrived, it became her nomination to lose. [New York Times, “Using Past Battles to Avert Pitfalls,” May 298, 2009.]

Media eruptions in the wake of Sonia Sotomayor’s nomination to the Supreme Court reminded me again of the very curious conception of humanity—what it is to be a human being—that currently dominates our public culture. What appears on the surface to be a deeper commitment to the cause of justice is rooted, in actuality, in a rather deformed idea of human intelligence and conscience. The root of the idea seems to be determinism. It says: “You can’t possibly understand any group in the society unless you are a member of it.” Conclusion? We must strive to have a member of every group—well, a member of the large groups, anyway—in every major institution. Better yet, the representation should be at the same ratio the group represents in the population. An alternative rooting might be belief in the ruthless (or helpless) selfishness of people. Thus no one will conscientiously consider the rights and needs of a group of which he or she is not a member. Whites can only ever legislate or adjudicate for whites; they will always discriminate in their favor. Consequence? We must balance the white power with other colors in our Rainbow Coalition.

Among the oddities in this nomination is that I’ve seen Sotomayor described as a “non-white Hispanic” in one political blog, for instance, on the very strange understanding, perhaps, that a Latina is of some other race? Or did the blogger happen to behold Sonia when she was deeply tanned? Because the benighted Census Bureau gives us choices to call ourselves White or Hispanic? Whereas elsewhere the Bureau reports, in sub-sub classifications, some Hispanics as White-Hispanics and others as Black-Hispanics… Another oddity is that a highly restrictive classification, “Ivy League credentials” should be right there in a list of things indicative of diversity. Should we not, by the same logic, strive mightily for judicial appointments from no-name colleges and never-heard-of-universities too?

I find all of this exceedingly strange. And if I were a genuinely modern man, I would despair. I note that the 2000 Census only discovered 92,000 people resident in the country born in Hungary. Let’s multiply that number by four to represent children and grandchildren of these people; in that case the Hungarian-American “ethnicity,” to borrow a modern word, would amount to a slender 364,000, thus around about 1 percent of the U.S. population. In the modern mindset, if we take it seriously—which, fortunately, none of us really does—I could never ever hope to be represented on the Supreme Court by a member of my own unique ethnicity. I’m judicially dis-appointed.

I know. I know. Valid historical explanations can be spun here pointing at prejudicial practices well enough documented to make me admit, if I ever doubted it, that people are tainted by original sin. But these very explanations must be assessed in light of other, to the modern mind’s perhaps great astonishment. It is that people appointed to the bench who have “checked each of the grids” have, subsequently, astonishingly, seemingly voted in cases based on their unique judicial take on the issues and on their own conscience—not at all as they were supposed to. And not surprisingly. Appointments to the High Court are for life—and the officials who serve there are genuinely freed of political pressure; they never need to brave the process of confirmation again. All this is well known. And reassuring. Why then are we going through the same mad St. Vitus dance every time a new judge is appointed? And why are the beady eyes of the Media never focused on any other issue except one?