This has been a week of contrasts for our judiciary system. On Tuesday while the California Supreme Court handed down a decision that is the 21st century answer to Plessy v. Ferguson, President Obama announced the nomination of Second Circuit Supreme Court Appeals Judge Sonia Sotomayor for the US Supreme Court.
While the decision by the California Supreme Court upheld a discriminatory ballot initiative, it should not have been a surprise. The vote by the California Supreme Court was not even close as Proposition 8 was upheld by a 6-1 majority. The lone dissenter was Justice Carlos Moreno. Much of the coverage of the decision overlooked the important point that the vote was on, excuse the pun, straight party lines. All six judges who voted in the affirmative had been initially appointed by Republican governors. Moreno is the only Supreme Court justice in California appointed by a Democrat.
The reason for this decision had less to do with constitutionality and the merits of the arguments, but more with simple partisan politics. Since Jerry Brown left office in January 1983, California has had Republican governors for 22 out of 26 years. This more than anything else has influenced the makeup of the Supreme Court, and this decision, in California.
Party line votes do not occur on every vote in the California, US, or other Supreme Courts, but they are not unheard of, particularly on the bigger cases. In recent years, the most famous Supreme Court party line vote was, of course, Bush v. Gore, which landed George W. Bush in the White House.
For conservatives, however, it was a mixed day. While the California decision about Proposition 8 was a victory for them, the nomination of Sonia Sotomayor by President Obama was a reminder that the long term looks less rosy for conservatives. While some on the left may not be entirely pleased with the Sotomayor nomination, she is, in many respects, the worst possible nominee from the perspective of the right. Sotomayor meets or exceeds the resume requirements for Supreme Court Justices in recent years. She also enjoys a good reputation, and like the president who nominated her, a compelling, and even uplifting personal story. Beating up on a Latina woman who played by the rules, worked hard and rose to the top of her profession is not a strategy that will help the Republicans get out of their current rut, yet the evidence so far suggests they may not be wise enough to put down that particular shovel and stop digging.
What seems to irk conservatives is that Sotomayor, as well as many of her supporters, have suggested that her background may inform some of the ways she interprets the laws and therefore decides on future cases. Interestingly, none of these conservatives seemed to question whether the personal backgrounds of the six straight Supreme Court justices who voted to uphold Proposition 8 in California, informed their views or narrow definition of marriage.
The notion that it is somehow a problem that Sotomayor's background will contribute to her decisions and views is troubling. Of course, Sotomayor's background informs her decisions, just as Chief Justice John Roberts' background, and extreme ideological views, inform his. This is why presidents make appointments to the Supreme Court, and perhaps why we have a Supreme Court at all -- so that qualified legal minds can bring a range of backgrounds and experiences to bear on difficult and important legal and constitutional questions.
Although the inevitability of personal background and ideology having an impact on how justices make decisions should be axiomatic, there is still some superstition surrounding this issue. It is almost as if a "don't ask, don't tell" policy is applied to potential justices. Senators and others tacitly agree not to ask about ideology and personal views, while nominees agree not to tell too much. Instead, the issue which always seems to come up in hearings, from both sides of the aisle depending on the party which opposes the nomination, is how the nominee views the role of the court, an interesting question to be sure, but one that has become something of a red herring often obscuring the true nature of the nominee.
Many Americans, are less concerned with Sotomayor's views regarding the role of the courts, but understand the import of Sotomayor's background and are pleased to see our president nominate her. Many of us voted in November so that backgrounds like Sotomayor's could inform decisions made by our highest court.
This week, California showed us the judicial past where courts dominated by conservatives, unrepresentative of the people for whom they are determining laws, restrict constitutional rights. Judge Sotomayor and President Obama showed us the future. The Republicans must be aware of this too, but their desperation to try to stop this progress is already showing.