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Published: 5/30/2009

Why not a justice who empathizes?

BY ROSE RUSSELL

THE first black U.S. Supreme Court justice, Thurgood Marshall, retired from the court in 1991, when Clarence Thomas took his seat. Now, though, it finally looks as though the court could be getting a racial minority who has empathizes with everyday Americans.

From all indications, President Obama s nominee, Judge Sonia Sotomayor, has the empathy he wants in a justice. Much like the commander in chief, Judge Sotomayor s humble beginnings have helped shape who she is. She is also distinguished because she seems not to have forgotten those origins and bears in mind how the law and court decisions affect ordinary people.

Judge Sotomayor is Hispanic and if confirmed to replace retiring Justice David Souter, she would be the first of her race on the court. The 54-year-old, Ivy League educated judge brings with her what the President describes as real-life experience that and the fact that he sought someone who would empathize with common folk has unnerved conservatives and Republicans. They are having a melt down about her nomination, and about this remark she made in a 2001 lecture:

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, she said.

The comment suggests she does not discard her experiences when weighing the law and cases. Generally speaking, white males have viewed the world from their experiences from time immemorial. That s why affirmative action is vital. It s a prompt to urge the majority to not merely favor those who look like them and whose backgrounds are similar, but to also consider women and persons of color and those whose experiences are different from their own.

Now, some have said that the President had to choose a woman. Well, no, and yes. This President is not abiding by expectations. And yes, it was smart for him to select a woman, and why not?

Providing Judge Sotomayor is confirmed, future Lilly Ledbetters and Savana Redings may find a friend in her. Justice Ruth Bader Ginsburg may enjoy having another female colleague on the court again. She says the absence of another woman has been noticeable since Justice Sandra Day O Connor retired in 2006.

Had the court s gender makeup been more diverse the case of Lilly Ledbetter the Alabama factory worker whose pay was below her male peers of equal or less seniority might have been different. The majority didn t have a clue as to the bias a woman might endure on the job, and placed tight restrictions on workers ability to sue for pay disparity. Dissenting with Justice Ginsburg were Justices John P. Stevens, David Souter, and Stephen Breyer.

As for Ms. Redding who was 13 when she was strip searched in junior high, Justice Ginsburg was rightly irked that her colleagues dismissed any humiliation a teenage girl would endure from being searched.

We ll see whether Justice Breyer has empathy for the young woman. He cast doubt about that when he said, I m trying to work out why is this a major thing to, say, strip down to your underclothes, which children do when they change for gym. How bad is this?

Well, it s quite bad, Justice Breyer. It s one thing for a girl to change for gym with her female classmates, and it s quite major ordeal to be asked by school authorities take off your clothes in front of them to prove you don t have drugs, legal or illegal.

In fact, the issue is so bad that the President had enough wisdom to nominate a woman who is also minority to become the next justice on the United States Supreme Court.



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