by David Twersky

June 4, 2009

The debate over the nomination of Judge Sonia Sotomayor to the Supreme Court has taken a familiar, yet unwelcome descent into infantilism.

When the judge came under attack for having quoted a line from the late American Socialist leader Norman Thomas in her Princeton yearbook, conservatives pounced. But I believe they will have a hard time making Norman Thomas over into Bill Ayers.

It is a sign of conservative desperation that they have seized on Sotomayor’s citation of Thomas, as if this put her into the category of those forced to deny that they now are or once were on the revolutionary Left.

Though he was far from perfect — until Pearl Harbor he opposed American entry into World War II and was cool (though not hostile) to the founding of Israel — Thomas left a legacy that requires no sudden conversion to become politically viable. The White House should offer no apologies. Thomas was an ordained Presbyterian minister whose pacifism during the First World War introduced him to the antiwar Socialist Party of America. He remained throughout his life a staunch anti-communist and a progressive — he saw his socialism as complementary to his Christianity and to his democratic principles, and in any event his views would not have served as indicators of his approach to constitutional law.

(I must fess up that I grew up in a working class family of Ukrainian-Jewish immigrants, where Thomas’ socialist politics were seen as being “on the Right.”)

Judge Sotomayor should be congratulated for her wisdom in drawing from Thomas.

What so inspired the young college student was Thomas’ insistence that positive change was possible, even if the climb was steep: “I am not a champion of lost causes, but of causes not yet won,” he said. On the merits, a nice thought and you needn’t be a socialist to approve. One wonders why conservatives would find it so objectionable. Oh, by the way: The “lost causes” on Thomas’ agenda included civil rights, unemployment insurance, and universal medical coverage, among others. “Radical” when first espoused, quite conventional today, even if conservatives quite legitimately want to quarrel over their application. Thomas’ quote amounts to an affirmation of hope.

‘Perpetual tension’

But the attempt to stir controversy by linking Sotomayor to Thomas pales beside the attack on her as a “racist” based on a speech in which she insisted that gender and ethnicity might have an impact on a judge’s approach to constitutional law.

Judge 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.” Sounds racist, right? Latinas are better suited to join the Supremes than white men! What if a white man said the same thing? Rush Limbaugh went so far as to compare Sotomayor to David Duke.

Don’t you love context? In that speech Sotomayor argued that, with respect to personal identity, American culture is in “perpetual tension…[between] the melting pot and the salad bowl.”

Does anyone think that, to take an example, Justice Arthur Goldberg’s childhood in a poor Ukrainian-Jewish family in Chicago did not influence him as an adult? Goldberg, who would become a staunch advocate of labor unions, resigned from his first job out of law school because he had been assigned to foreclose mortgages on other people’s property. Is it not fair to argue that Goldberg’s upbringing and the values instilled in him by his parents and by the unfolding reality in America became points of departure from which he viewed the application of the Constitution?

Undoubtedly, Goldberg’s background made him particularly sensitive to the rights of women and others deprived of power. He made a mark by introducing the notion that the death penalty violated Eighth Amendment protections against “cruel and unusual punishment.” In 1965, he wrote an influential concurring opinion in Griswold v. Connecticut, where he argued that the Ninth Amendment should be read to include a right to privacy. In 1973, Goldberg’s argument in Griswold became the basis for Roe v. Wade. Conservatives can say, as they do, that Roe was poorly constructed, but to argue that a judge’s particular background does not and should not have bearing on the law is to argue for a court made up of automatons.

Of course, white Anglo-Saxon men could, and did, reach similar conclusions as Goldberg. Nevertheless, Goldberg was making a statement, not so different, I believe from Judge Sotomayor’s, when he swore his oath of office on the Hebrew Bible.

A former editor of the NJJN, David Twersky was a contributing editor for the NY Sun and was responsible for international affairs at the American Jewish Congress.

Comment: comments@njjewishnews.com

--TOP--