One of the great things about Senate confirmations of Supreme Court justices is that they help us develop a long-term perspective on the workings of the highest tribunal in the land.
For instance, when the political fight broke out over Sonia Sotomayor's assertion that a judge's ethnic and socioeconomic background might actually influence how he or she interprets the law, I cracked the history books to find support for that fairly obvious point.
The best illustration turns out to be a 1927 case known as Buck vs. Bell. Or as it might otherwise be known, the case of Oliver Wendell Holmes and the imbeciles.
Holmes, perhaps the most revered of all Supreme Court justices, was always proud of his opinion in Buck vs. Bell, which upheld a Virginia law allowing the forced sterilization of "mental defectives." Yet the terse ruling proclaims, in each of its four chilling paragraphs, the narrow elitism of his personal life experience. And its consequence was tens of thousands of ruined lives over the next half-century.
Before we reconsider Buck vs. Bell, let's review the conservative brief against Judge Sotomayor, who presumably reflected President Obama's stated desire for a justice who would show "empathy."
The attack is based partially on a speech she delivered at UC Berkeley Law School in 2001. Challenging a notion attributed to former Justice Sandra Day O'Connor that "a wise old man and a wise old woman" on the Court should come to the same legal conclusion, Sotomayor said, "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."
For conservatives, that's the money quote. Yet Sotomayor developed this idea with greater nuance. She acknowledged that people of "different experiences or backgrounds" are often quite capable of "understanding the values and needs of people from a different group." But she endorsed the view that "in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought."
Her bottom line was that "personal experiences affect the facts that judges choose to see." Those personal experiences affect far more than a judge's approach to affirmative action or other social welfare cases. They affect the approach to business and statutory cases -- the majority of matters before the high court.
