Dear Walter and Linda:
While we have a moment to catch our breath before more decisions rain down on Thursday, I want to get your thoughts on some of the other opinions that have already come down this term. And also on the nomination of Sonia Sotomayor to the Supreme Court, which seems to have fallen off the front pages in recent days—in part because the worst of her attackers seem to have down-shifted from shrill, cartoonish, and wrong to just shrill and wrong to—now—just wrong.
With 17 years of her judicial experience to examine, those who would attack Sotomayor as unqualified are focusing on a few words from old speeches and her role in the 1980s on the board of the Puerto Rican Legal Defense and Education Fund. They really do seem to be grasping at old straws. I understand why they’ll feel the need to try to use those straws to build a house, no matter how tippy, but it’s been stunning to see the energy go out of the story these past weeks.
I want to ask both of you about another aspect of the harmonic convergence Walter described in his initial post, a convergence in which the SCOTUS docket and confirmation hearings cosmically collide. In addition to the ways the race cases echo the race conversation in the run-up to the confirmation, there is also a gender case that may shape the way we talk about gender at Sotomayor’s hearings. I keep thinking that if the strip-search case comes down as we expect and the Supreme Court says it’s fine for school administrators to strip search young girls for pain meds, it will only add fuel to the growing conviction that the court just doesn’t understand women at all. It may well be this year’s Ledbetter case. Linda, yesterday you mentioned Justice Ginsburg’s new openness about her male colleagues’ failure to understand life from a woman’s perspective. Why do you think she’s started speaking out so openly? Do you really believe, as you wrote, that Sotomayor should “say what she thinks”? Hasn’t saying what she thinks—about race and gender and affirmative action—made her a walking target, even if the attacks won’t ultimately go anywhere?
Is there ever a way to talk about “identity politics” without being accused of just having too much identity? Is there ever a way to talk about “empathy” without being accused of having some mental deficiency or disorder?
Do either of you want to comment on the awesome judicial misconduct case, Caperton, or the two cases that came down last week involving DNA testing and age discrimination? I will listen to your thoughts on these and other matters with empathy bordering on bias.