Can the Supreme Court Be Pure Again? (Was It Ever?)

08/15/2009 05:12 am ET | Updated May 25, 2011

The confirmation hearings for Judge Sotomayor are a foregone conclusion, with the dust raised by Republicans barely masking the bald fact that the Democratic majority can vote in whomever they want. In any case, a ritual that resembles liar's poker more than a serious interrogation of judicial philosophy will stay true to form, with much dodging and weaving on the nominee's part. This time around the Democrats no doubt feel that they must redeem themselves. John Roberts and Samuel Alito managed to disguise their true reactionary colors so successfully that their hearings were sweetheart kisses from all but a few liberals (one of those being the prescient Sen. Obama, who wasn't fooled for a moment).

Sotomayor can expect to be grilled on her supposed ethnic bias and gender issues, but the real issue has nothing to do with either. It has to do with the taint that has been on the Supreme Court since the shameful ruling over the 2000 Presidential election. The purity of the justices, their supposed detachment from the dirty business of politics, was exposed as a sham. Defying the court's own long precedent, the right wing simply installed George Bush by fiat. They did so willfully, smugly, openly, and without remorse, figuring that it was payback for the activist decisions initiated under the liberal Warren court. Nine years later, the irony is that if Sotomayor were the partisan zealot so ridiculously portrayed by her opponents, she'd fit right in. Her balance and impartiality could actually be hindrances, although we are told she's good at judicial street fighting -- let's hope so.

It may take a scrapper to shake up a court that has drifted as far out of touch with America's collective consciousness as the one that tried to sink the New Deal during the Great Depression. We are very fortunate that the liberal justices so reviled by the right wing gave us civil rights, school desegregation, abortion rights, the absence of mandatory school prayer, the Miranda rights for arrested suspects, and general advocacy for ordinary citizens. By comparison, Chief Justice Roberts has almost without exception voted for corporations over individuals, and he has used his prerogatives to seek out cases where he can weaken Miranda rules and most recently, open the door for overturning the Voting Rights Act of 1967, the single most important legislation that keeps the South from sliding back into racist practices of the past.

Skeptics will argue that the Supreme Court has always been political, or at least biased toward left or right, that only the naive believe that any branch of government can -- or should -- be impartial. If that's true, then the statue of blind Justice holding her scales in the balance should be removed from the premises. The present court is unusually impure, as Bush v. Gore clearly evinced. The only good that came from that corrupt decision was to expose how harmful it is when a democracy is saddled with judicial ideologues. Bush compounded this corruption by infiltrating the whole federal judicial system with a vast number of reactionaries and religious fundamentalists. It will take years to unseat these lifetime appointees, but Pres. Obama needs to start the work, ignoring red herrings like ethnicity, faith, and gender.