During the confirmation hearings for Justice Sonia Sotomayor, the Republicans were taking umbrage. The ability to take umbrage seems to relate to party affiliation, because Democrats are never any good at it, while Republicans are superb. It may be a genetic trait, like the ability to wiggle your ears.
Having failed to find anything in Judge Sotomayors judicial record to justify their outrage, the GOP focused on a quote from her public speeches: I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion. This was tied to President Obamas statement We need somebody whos got the heart, the empathy, to recognize what its like to be a young teenage mom. The empathy to understand what its like to be poor, or African-American, or gay, or disabled, or old. And thats the criteria by which Im going to be selecting my judges.
The Republican response, effectively equating empathy with racism and sexism, was so virulent that Judge Sotomayor found it more practical to retract her statement than to defend it. Now, a defense of Judge Sotomayors position has come from an improbable source Associate Justice Antonin Scalia.
In oral arguments in the case of Salazar v. Buono, concerning the constitutionality of a 5-foot cross on federal government land in the Mojave National Preserve, Justice Scalia suggested that the cross is a universal, rather than a Christian, symbol. The published discussions seem to draw from Dahlia Lithwicks report in Slate.com:
The cross doesnt honor non-Christians who fought in the war? Scalia asks, stunned.
A cross is the predominant symbol of Christianity, and it signifies that Jesus is the son of God and died to redeem mankind for our sins, replies Eliasberg, whose father and grandfather are both Jewish war veterans.
Its erected as a war memorial! replies Scalia. I assume it is erected in honor of all of the war dead. The cross is the most common symbol of of of the resting place of the dead.
Eliasberg dares to correct him: The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
I dont think you can leap from that to the conclusion that the only war dead the cross honors are the Christian war dead, thunders Scalia. I think thats an outrageous conclusion!
Even if some of Justice Scalias best friends are Jewish (highly unlikely, but who knows) its obvious that none of them are dead. The Veterans Administration has a list of over 30 symbols that may be used on VA grave markers, including a symbol for atheists and another for Wiccans. Justice Scalias notion of one-size-fits-all honors doesnt even consider that the VA has at least 13 symbols that are either crosses or incorporate a cross in their design.
Another example of a case where the proper decision required empathy was Safford Unified School District #1 v. Redding, which involved the strip search of a 13-year old girl over allegations that she had some over-the-counter ibuprofen tablets, Justice Ruth Bader Ginsberg said of her colleagues They have never been a 13-year-old girl, Its a very sensitive age for a girl. I didnt think that my colleagues, some of them, quite understood. Most evidently did, but Justice Clarence Thomas wrote a minority opinion favoring the school district.
Justice Scalia once said of the Constitution: I dont think its a living document, I think its dead. More precisely, I think its enduring. It doesnt change. I think that needs to be orthodoxy. But even if the Constitution is unchanged, the United States has changed dramatically over time, and the role of the Supreme Court may be to fit pegs into holes that never existed in 1787. To do that requires an understanding not just of the Constitution, but of the whole United States in all its diversity. Under those circumstances, I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion. And Mr. Justice Scalia and others of his faction should get out more.
Sam Uretsky is a writer and pharmacist living on Long Island, N.Y.
From The Progressive Populist, December 1, 2009
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