Bob Franken

The Courting Ritual for Sonia Sotomayor


It is always great fun to be pompous and drop in a literary or historic quote to reinforce an argument. So let’s deal with the controversy over Sonia Sotomayor’s “empathy” by quoting Alan Jay Lerner, who wrote, “The law must be tempered by reason.” Is everyone impressed, or what?

Never mind that it’s only a line from the movie musical “Gigi” or that Lerner was just the screenwriter. It works here.

It helps make the obvious point that the law is supposed to be far more than an inflexible code applied by robed robots. At least it would seem to be obvious.

Apparently, it’s not to those who contend that Sotomayor is disqualified to be a Supreme Court justice because she’s “empathetic.” How pathetic is that argument?

Are we looking for nastiness? Do we want every one of the justices to be like Antonin Scalia? (Actually, he’s fun to be around in person; it’s only his opinions that are nasty.)

The point of view that judges should adhere to the precise wording of the law is fatally flawed when we look at how jumbled so much of that wording is. Isn’t that what attorneys are for, to twist the semantic meanings? Or senators and pundits, for that matter?

Of course the law is subject to interpretation and “reason,” as our man Lerner said. And what better basis for that than consideration of and sensitivity to the plight of those it’s supposed to protect — all of us. In other words, “empathy.”

The related argument is the ad nauseam bickering over “judicial activism.” Is that the opposite of “judicial complacency”? Maybe so.

That so-called activism is what brought us Brown v. Board of Education, which overrode the segregationist Plessy v. Ferguson decision and started us out of the vicious Jim Crow discrimination that still divided our country in the 1950s.

Surely no one prefers those days. Come to think of it, maybe that’s not such sure thing. That suburban swimming club near Philadelphia is a bitter reminder that we have a way to go, but it was those “activists” who forced us to begin.

Sotomayor herself is the first to tell you she was a beneficiary of our country’s halting steps out of the dark ages. Even her exuberance over the preferred mindset of a “wise Latina woman” can be understood when we consider the mess that we white guys have created.

So it’s on with the show. We can watch as the conservative members of the Senate Judiciary Committee pander to their base’s yearning for the “good old days” of denied opportunity for all but the privileged few.

Once the Senate fulfills it’s “advise and consent” role and presumably confirms Sotomayor to the Supreme Court, the members can turn to their other big job of the summer — doing something to overcome the huge problems that are crushing our country.

Do not hold your breath, and as we watch Congress and the administration twist into their absurdist contortions, perhaps they could benefit from a paraphrased reminder that “lawmaking must be tempered by reason.”

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