Jack & Jill Politics

Above — video from the White House Announcement of Obama’s Supreme Court Pick: Sonia Sotomayor

I almost teared up watching Sonia Sotomayor saying to the whole world that her mother was twice the woman that she was. God knows I feel the same about my mama. It’s inspiring to live in such historic times when a President looks to find the most qualified person who just happens to not look like previous “most qualified” nominees.

And that’s nice. But that’s not what I really like the most about Sotomayor’s appointment. I love that she has more extensive and more varied judicial experience than any of the other current Supreme Court Justices. I love that she references the Founding Fathers while acknowledging that the interpretation of the law has to account for the real world consequences on the lives of citizens. Because that’s what the law is supposed to be for: it’s not an academic exercise. The law is designed to protect the rights of citizens. End of story. That does mean balancing the rights of some citizens over others for the greater good. And there’s where conservatives have a problem.

Republicans are going to try to paint her as an “activist” judge. We’ve for years about the terrifying bugaboo of the “Activist Judge” of which we should be afraid…very, very afraid. Because they might be “results-oriented”. Let’s deconstruct this. Who was the first “activist judge” — what the hell are they actually talking about?

“They” are talkin bout Thurgood Marshall. Marshall was totally bad. To quote the immortal Isaac Hayes:

Who is the man that would risk his neck
For his brother man?
[MARSHALL!] 

Can you dig it?
Who's the cat that won't cop out
When there's danger all about?
[MARSHALL!]
Right On! 

They say this cat [Marshall] is a bad mother...
SHUT YOUR MOUTH!

In 1940, Thurgood Marshall became the chief counsel for the NAACP and went to argue (and win) case after case before the Supreme Court in his efforts to secure the rights of full citizenship for African-Americans. 25 years later, he would be recognized for his achievements in the use of the law to transform society into a more equitable place when Lyndon Johnson appointed him to the Supreme Court. While on the Court, he argued & fought (again, often successfully) time and again for the rights of all, especially individuals. Which sometimes left non-individuals such as large corporations a bit salty. He had this to say about the Constitution (from Wikipedia):

In 1987, Marshall gave a controversial speech on the occasion of the bicentennial celebrations of the Constitution of the United States.^[6] Marshall stated, “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.” In conclusion Marshall stated ” 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.”^[7]

See, Marshall was able to look at the Constitution as sacred yet flawed — as any document that would classify some of its citizens as constituting 3/5ths of a person must be seen. Interpreting the Constitution to Marshall meant seeing it not as a document frozen in time — as some conservatives who’d like to see again a world where only certain white men with enough money can vote — but as a document on whose fundamental principles we agree upon and which we continue to perfect as a nation together as one people, indivisible. Just to be clear, this is how the Constitution valued black people originally until the 14th Amendment’s correction (from Article I):

(Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.)

3/5ths of a person is how our population in the United States of America was determined originally for the purposes of (not) representing our interests in the House of Representatives. So, yes, without judicial and other “activism” as it’s called, we would not live in the freer and fairer, more equitable time in which suffrage includes the right of all citizens, no matter your income, ethnicity nor gender, to vote and help determine our collective future through government. It is that sentiment, that notion, that fearless intellectual rigor that demands justice & equality before the law for all, conservatives fear. It is the concept that the law can still be interpreted and shaped to provide more protections for individuals and for those whom the law has not protected in the past because of unjust bias — this is what conservatives fear when they speak of “activist judges”.

So I say — so what if Sotomayor is an “activist judge” in the school of Thurgood Marshall? I’m not saying she is. In fact, she appears, much like Obama, to be a pragmatist, which is likely to frustrate a few folks down the road a-piece. That’s a good thing. I like pragmatism and realism. What I am saying is that it’s time for progressives and liberals to embrace the label of “activist judge” full on rather than ducking and defending against it. Thurgood Marshall was an activist judge alright. And an American titan of jurisprudence. We would be lucky indeed to find a man or woman of his caliber to blend intellectualism, love of law and love of humanity in one brilliant mind.

President Obama has chosen well. He himself is a former constitutional law professor, so he knows the Constitution just fine, thank you. In Sotomayor, he’s chosen someone who brings not only brilliance in the law but a common sense understanding of how the law practically works. And that’s what America needs right now. Less narrow-minded ideology and more practicality borne of enough experience and judgment to ensure that the law does not benefit the few at the expense of the many.