HOUSTON, Texas — In September 2001, Judge Sonia Sotomayor, now a nominee to the U.S. Supreme Court, introduced Justice Antonin Scalia at a conference on legal ethics at Hofstra Law School in New York.

   Sotomayor repeated an often-told tale about a meeting between Justice Oliver Wendell Holmes and Judge Learned Hand, the leading legal minds in the early part of the twentieth century. After lunch, Holmes started to drive off. Hand, realizing Holmes had left his umbrella, ran after him calling, “Do justice, Sir, do justice!” in that peculiar manner of speech of a century ago.

   Holmes, hearing this, stopped his carriage, responding: “That is not my job. My job is to apply the law.”

   The quip illustrated the balancing act between morality and justice. Judges, to do their jobs well, she commented, need moral insight into understanding how to apply the law.

  Lately, she has been at the receiving end of criticism for not buying into a myth that personal experience doesn’t account for anything when it comes to judging. In the old fashion way of thinking, everyone is just an object. Your personal story really doesn’t matter that much. It’s like her MP3 doesn’t play on their 78 rpm player.

   Consequently she has been dogged by some gotcha criticisms when someone else’s personal perspective doesn’t match hers.

   It seems that her detractors — excluding misogynists and xenophobes — are the ones who dream of ideological purity, as if the law is like a Betty Crocker recipe book. All of the answers are already known; it’s just a matter of coming up with new appetites.

   But, as we know, most things are not like that. Take, for example, the 5-4 Supreme Court split on the New Haven firefighters case.

   New Haven was in a damned-if-you-do (nullify a civil service exam which had an unfair testing method) and damned-if-you-don’t. When the case reached the Second Circuit Court, Sotomayor voted with the majority that the city had the right to nullify the exam. The U.S. Supreme Court reversed that decision and voted for damned-if-you-don’t.

   Economist Teresa Ghilarducci says a flaw in the Supreme Court decision is the assumption that New Haven’s testing is an objective way to determine competency. Justice Ruth Bader Ginsberg even pointed out in her dissent from the majority that they ignored “substantial evidence of multiple flaws in (the) tests.” Better tests are known, as for instance in neighboring Bridgeport, Conn.

   But when it comes to Sotomayor, portraying her as if she was on the “losing” side, applies a very juvenile measure for sizing up a formidable person.

   Little is gained playing that zero-sum game where something in her disfavor is a detractor’s gain. The judiciary is about the muscle behind the quality of the ideas going into decision-making.

   Sotomayor’s detractors make a mistake by confusing the judiciary with the gladiator-like competitions by the political parties. There, personal gain and calling it justice may play. But in the third branch of government, the judiciary, other standards apply.

   In that 2001 speech introducing Justice Antonin Scalia, Sotomayor threw in a footnote — the way lawyers like doing. In it she said “personal morality” standards are those we have for ourselves and the communities we live in. Personal morality is the bellwether for issues of group fairness.

   That understanding of communities alone is a welcome interplay contribution for the U.S. Supreme Court. I think those who negatively react to her are scared how Sotomayor has differentiated herself. She is not a homogenized, conformist judge but one with a personal identity. It forces everyone’s hand in this.

   Future aspirants for appointment will have to come better equipped, with their values worked out about their personal and community identity. They cannot hide anymore by being generic.

   [José de la Isla’s latest book, Day Night Life Death Hope, is distributed by The Ford Foundation. He writes a weekly commentary for Hispanic Link News Service and is author of The Rise of Hispanic Political Power (2003). E-mail him at [email protected].]

   © 2009

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