By nominating Judge Sonia Sotomayor to the Supreme Court, Barack Obama has launched a shrewd revolution in global constitutional culture.
Local illiberals will find it harder to defend “colour-blindness”, narrow and brittle understandings of “judicial independence”, to deride the ANC’s insistence that judges empathise with the masses and to insist, as they have, that judges are a powerless “secular priesthood”, somehow apart from politics. On each point Obama and Sotomayor point vigorously the other way.
First, Sotomayor is neither “colour-blind” nor “gender-blind”. In a now well-known speech published in the Berkeley La Raza Journal, Sotomayor wrote: “Justice [Sandra Day] O’Connor has often been cited [as] saying that a wise old man and a wise old woman will reach the same conclusion in deciding cases. I am … not so sure that I agree with the statement. First, there can never be a universal definition of wise. Second, 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.”
Developing her rejection of “colour-blindness” in a 1998 speech, Sotomayor observed that the United States “has a deeply confused image of itself that is a perpetual source of tension. We are a nation that takes pride in our ethnic diversity, recognising its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in a race- and colour-blind way that ignores those very differences that in other contexts we laud.”
Sotomayor rejects the illiberal confusion of “judicial independence” with “neutrality”, such as recently advocated by the British-South African barrister Sydney Kentridge, who wrote: “Of course, any person appointed to the Bench comes to it with his or her political and social opinions, but that need not lead to bias. The tradition of judicial independence and judicial integrity should overcome the judge’s personal preferences.”
Actually, instead of seeking to “overcome” human bias as a Nietzschean judicial superwoman would, Sotomayor sees a more subtle and realistic judicial task, which is to sort legitimate from illegitimate bias.
“I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations,” she writes. “I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”
In South Africa a judicial bias in favour of the masses is a minimum requirement of judicial legitimacy because, as Sotomayor explains, “there is no objective stance, but only a series of perspectives — no neutrality, no escape from choice in judging”.
Judge Edwin Cameron has argued that judges are “oracles” who operate entirely outside of power, a doctrine embraced by Judge Chris Nicholson who, in the infamous judgment that felled a president, described judges as a “secular priesthood”.
Nicholson didn’t realise, he later claimed, that his decision would have political consequences; Cameron told a Unisa audience that “neither judges nor academics exercise power”.
Sotomayor, more realistically, insists that “to judge is an exercise of power” and she had shrewd legal realist advice for law students: “All of the legal defence funds out there, they’re looking for people with Court of Appeals experience. Because … [the] Court of Appeals is where policy is made … I’m not promoting it and I’m not advocating it.”
Obama himself quoted the legal realist Justice Oliver Wendell Holmes in announcing the Sotomayor nomination: “The life of the law has not been logic, it has been experience.” This gave heightened voice to an entire legal realist school of thought that has been remarkably suppressed in South Africa’s democratic jurisprudence so far.
Yet the legal realist traditions (for there are several) are exactly what South Africa needs to liberate law and politics debates from the pretentious posturing of oracles and the vulgar populism of lawlessness. Jacob Zuma, no less than Barack Obama, needs shrewdly realistic courts to cement the legal hegemony underlying his electoral mandate (John Hlophe means well, but lacks the Obama-Sotomayor shrewdness and thus disempowers and dehegemonises himself and his cause).
Just as the recent financial meltdown buried the Washington consensus in global economics, shrewd judicial reformers inside the ANC will see how the Obama ascendancy — and now the Sotomayor nomination — can bury illiberal traditions in South African jurisprudence.
“First they laugh at you, then they ignore you, then they fight you, then you win,” Mahatma Gandhi reputedly said. This is the fascinating fate of critical race theory, a legal realist tradition in which both Obama and Sotomayor have read deeply and which Obama prescribed for reading at the University of Chicago Law School.
Critical race theory, marginalised by traditional practitioners since its emergence in the 1980s, has now achieved real power at the pinnacle of US judicial decision-making. Patricia Williams, a critical race theorist who has a column in The Nation under the wry title “Diary of a Mad Law Professor”, cried like a baby when Obama won; now she screeches with delight over Sotomayor. The critical race theorist Lani Guinier was made to look insane by a right-wing media in 1993 when Bill Clinton nominated (and then dumped) her as assistant attorney general for civil rights.
But the similar attempts to demonise Sotomayor as a scary advocate of “identity politics” have been beaten back by Obama’s political brilliance and intervening cultural changes. “[Sotomayor] is a judge steeped in the legal school of identity politics [sic],” the Wall Street Journal editorialists shrieked. But although the journal’s scaremongering (“Clinton’s Quota Queens”) worked against Guinier in 1993, it’s failing now.
Ronald Suresh Roberts is writing a legal realist critique of South African constitutional jurisprudence since 1994