Judge Sonia Sotomayor has been confirmed to serve as the 111th justice on the United States Supreme Court.
President Barack Obama declared that the vote, by an overwhelming 68-31 Senate majority, “moved America yet another step closer to a more perfect union.”
The president’s meaning was clear, his sentiment correct.
Justice Sotomayor is a Latina, the first ever to sit on the nation’s highest court. And for all the controversy that her past comments about the need and value of diversity on the courts may have inspired among those who cling to a disappearing and discredited past, there is simply no question that the addition of a wise Latina to the Supreme Court represents a measure of progress not merely for one ethnic group but for the whole of America.
“Over the years, it has become increasingly important for our courts to reflect the growing Latino presence in this country,” declared the statement celebrating the Senate vote from the Mexican American Legal Defense and Educational Fund (MALDEF), a leading Latino civil rights organization. “MALDEF thanks President Obama and the members of the U.S. Senate for their leadership in choosing a highly qualified and dedicated public servant to serve our country. Judge Sotomayor’s confirmation reflects the commitment of our nation’s leaders to promote the legitimacy of the judicial system and secure our community’s trust and confidence in the courts.”
It was, we can hope, an understanding of this reality that led nine Republicans to join the Senate’s Democrats in voting to confirm Barack Obama’s first nominee to the Supreme Court.
Wisconsin Senator Russ Feingold, the history buff who chairs the Constitution subcommittee of the Senate Judiciary Committee, spoke a necessary truth Thursday when said that Judge Sotomayor is “someone whose remarkable life story and varied experience will add diversity and perspective, which the Court sorely needs.”
When the American experiment began, the president, the vice president, the members of the Cabinet, the members of Congress and the members of the Supreme Court were monied white men.
There was some diversity of religion — although not a lot — and a good deal of diversity of opinion.
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But it was safe to say that the wisdom of all humanity was missing from the three branches of our federal government.
This was not by chance.
As Supreme Court Justice Thurgood Marshall observed with regard to the founders on the 200th anniversary of the drafting of the Constitution: “(The) government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”
Marshall, so central a figure to this country’s progress, recognized that America was an evolved and evolving nation.
When he uttered those words, in 1987, he embodied racial and ethnic diversity of the high court, while Justice Sandra Day O’Connor provided the only gender balance.
It was not merely the court that was unrepresentative.
All three branches of the federal government remained then — and remain now — weighted toward the wealthy, the white and the male.
The struggle to create a government that reflected America advanced first in the legislative branch, which began to diversify as barriers to voting by African Americans, Asian Americans, Native Americans, Hispanics and women were broken down.
Executive branch diversity came more slowly, with initial breakthroughs at the Cabinet level and, this year, with the assumption of the presidency by an African-American male.
But what may well be the most important diversity, that of the judicial branch which interprets the constitutionality of laws regarding the liberty and opportunity of all Americans, has come in fits and starts.
It was a big deal when a Jew was nominated to the high court, Louis Brandeis, was nominated in 1916 to serve on the U.S. Supreme Court. As Justice William O. Douglas observed, there were objections because “Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance, his arithmetic, his courage. He was dangerous because he was incorruptible. . . [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.” Passionate advocacy by President Woodrow Wilson — “He is a friend of all just men and a lover of the right; and he knows more than how to talk about the right — he knows how to set it forward in the face of its enemies,” the chief executive said of Brandeis — and partisan loyalty secured confirmation on a 47-22 vote. (Support for the nomination came from 44 Democrats and three Republicans reformers: Wisconsin’s Bob La Follette, Nebraska;s George Norris, Washington’s Miles Poindexter.)
The ensuing nomination of the first African-American justice, Thurgood Marshall, came at a moment of great social ferment and progress and Marshall was quickly confirmed in the summer of 1967. His confirmation by the Senate came by a 69-11 vote, with segregationist dead-enders (most of them Democrats) casting the majority of the “no” votes.
It was even easier for the first woman, Sandra Day O’Connor, a relatively-conservative Republican nominated by a conservative Republican president, Ronald Reagan. O’Connor was confirmed in September, 1981, on a 99-0 vote of the Senate.
The next great breakthrough came on a Thursday afternoon in the summer of 2009, when the Senate confirmed Judge Sotomayor.
Like Brandeis, Marshall and O’Connor before her, Justice Sotomayor will be first and foremost a jurist. But she is something else.
From this day forward, Justice Sonia Sotomayor is and always will be an essential player in the story of American progress.
There will be more progress.
The court will be joined by more women, more people of color, by Muslims and Buddhists and out gays and lesbians.
This progress will face resistance, just as the progress represented by Judge Sotomayor’s nomination and confirmation did.
But, as Justice Marshall assured us on the 200th anniversary of the Constitution, “The progress has been dramatic, and it will continue.”
The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the People” no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.
And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives. If we seek, instead, a sensitive understanding of the Constitution’s inherent defects, and its promising evolution through 200 years of history, the celebration of the “Miracle at Philadelphia” will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.
Thus, in this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.
Those who recognize the wisdom of Justice Thurgood Marshall, as expressed 22 years ago, will understand that the celebration of Justice Sonia Sotomayor’s confirmation is about more than one woman, one Latina or one justice on the high court. It is a celebration of the national evolution that Marshall knew to be the greatest accomplishment of this American experiment.