THE GODDESS of sound bites has been generous this week.
First, she granted us a Supreme Court nominee who says things like "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Then she provided us with Ted Olson, George Bush's solicitor general and the victor of Bush v. Gore who's now suing the state of California for, in his words, "stigmatizing" gays who want to get married.
It doesn't get much better than this. And in a strange but somehow poetic twist, the two great news events of the past seven days are both profoundly historic and interconnected.
As we all know and can recite in our sleep, Sonia Sotomayor is the first Hispanic to be nominated to the high court (if we forget Benjamin Cardozo, whose family was Portuguese). And a court was forced to acknowledge that it was not the branch of goverment that makes the laws. Hopefully, Judge Sotomayor caught wind of that.
Obama's pick to fill David Souter's seat has been rightly excoriated for implying that the analytical skills of white men pale in comparison to those of Latina women. (Just imagine if Antonin Scalia had said that Italian men from Queens were savvier than Hispanic feminists who grew up in Bronx housing projects. The fallout would have been nuclear.)
And while that doesn't make Sotomayor a racist, her comments are a chilling reminder of the damage caused by identity politics. But the truly alarming comments from the justice-select have less to do with her views on ethnic and gender superiority and much, much more with the proper role of a judge in this democracy.
Speaking at a symposium at Duke in 2005, Sotomayor stated that "the Court of Appeals is where policy is made." In lawyerspeak, that means appellate courts make laws. Sensing the enormity of her faux pas, the judge retreated clumsily by saying, "And I know . . . this is on tape and I should never say that because we don't make law, I know."
But the damage was done, and the message clear: Sotomayor doesn't much cotton to that whole separation of powers idea. She doesn't believe appellate courts should wait for controversies to come to them, but that she and her colleagues can grab issues and make policy - just like elected representatives.
While civil libertarians who never met a right that wasn't "fundamental" would heartily agree, the rest of us who actually cherish the right to vote for our preferences are appalled.
Which brings me to the intersection of Sonia Sotomayor and Prop 8. In upholding the November referendum amending the state constitution to ban gay marriage, the state supreme court showed wisdom and courage at a time when those commodities are in short supply among our public servants.
It would have been the politically expedient thing to find some legal loophole and rule that the voice of the people of California was irrelevant. They could have listened to the specious and hypertechnical arguments advanced by proponents of gay marriage to find that the democratic process could be tossed aside as a mere inconvenience. After all, appeasing the loudest special interest groups is so much more important these days.
We have evidence that Judge Sotomayor would probably agree, given her decision in Ricci v. De Stefano. That's the case where white and Hispanic firefighters in New Haven, Conn., were told that even though they were the highest scorers on a civil-service exam, the test results could be thrown out, and their promotions nullified, because none of the black test-takers applicants had passed the exam. (Color, ethnicity and gender being crucial in fighting fires.)
THANK GOD Sotomayor wasn't on that California court, because even though the decision was 6-1 in favor of the ban (the will of the majority of the voters), she surely would have found some way to empathize with gays and lesbians who feel, like Ted Olson, that they are being stigmatized.
Activists like to say that a majority vote shouldn't deny people their fundamental rights. But of course, that begs the question as to whether marriage is a right that everyone should enjoy, or something that society - not judges - gets to define.
California allowed its people to speak. So, on the other side, did Vermont, whose legislature recently legalized gay marriage. I agree with the first, disagree with the second. But that's democracy.
I hope Judge Sotomayer got the message. *
Christine M. Flowers is a lawyer.