OBOS Interview: Georgetown Law Professor Emma Coleman Jordan

By Christine Cupaiuolo — May 29, 2009

emma_coleman_jordanUpon hearing that President Obama had selected Judge Sonia Sotomayor to replace Supreme Court Justice David Souter, Our Bodies Ourselves turned to Georgetown University Law Professor Emma Coleman Jordan to answer questions about the nomination.

Jordan established the field of economic justice in legal theory, and she is well known for her work in financial services and civil rights. Her most recent book is “Economic Justice: Race, Gender, Identity and Economics.”

Jordan also knows something about Supreme Court confirmations — she was counsel to Anita Hill during the Clarence Thomas confirmation hearings.

Two widely discussed issues have been Sotomayor’s views on a woman’s constitutional right to abortion and her comments on ethnicity and gender. In her 17 years as a federal judge, Sotomayor has had limited experience dealing directly with abortion-rights cases, and Jordan said there’s “nothing decisive” to be gleaned from her decisions.

Referring to the oft-repeated line, made during a speech delivered at University of California Berkeley School of Law in 2001, that has become the rallying cry of some Republicans opposed to Sotomayor’s nomination — “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” — Jordan said, “If you read the full transcript of her comment you will see that she was only offering an insight into her unique contribution and the wisdom that comes from her unique experiences.”

We’ll see if Republicans can appreciate context — because it’s truly an eloquent speech on the complexities and responsibility of identity and experiences. (Update: Obama is now saying he’s “sure [Sotomayor] would have restated it,” but he goes on to defend the speech and concludes in his remarks to NBC’s Brian Williams, “I think all this nonsense that is being spewed out will be revealed for what it is.”)

Here’s the rest of our interview with Jordan:

Our Bodies Ourselves: How does the selection of Judge Sotomayor fit with what we’ve heard President Obama say about a Supreme Court justice needing empathy as well as experience?

Emma Coleman Jordan: Judge Sotomayor represents the president’s commitment to excellence, above everything else. The nomination is consistent with what we have seen of his judgment in selecting the members of his cabinet. A Nobel laureate for energy secretary, who is also an Asian American; a Wellesley class president, former First Lady and presidential primary rival for Secretary of State, who happens to be a woman.

OBOS: Is this appointment a representation of Obama’s liberal principles or more a part of his pragmatic strategy?

ECJ: Remember that we are only four days into this nomination. With that caveat in mind, I would say that this represents the Obama brand of pragmatic progressivism. Remember that our biggest influence on the direction of the Supreme Court is our vote for president. In addition, when a president chooses a nominee he is engaged in art, not science.

OBOS: What might Sotomayor’s working class background bring to an understanding of economic justice and legal theory?

ECJ: She has spoken of feeling like an “alien” at Princeton. She indicated that she did not raise her hand, or utter a single word in class during her freshman year there. She later won the highest general prize for academic excellence for an undergraduate, graduating summa cum laude. She has referred to passing drug dealers in the stairwells of her apartment complex in the Bronx.

These transitional experiences would be powerfully formative to help her penetrate the complex and difficult constitutional, regulatory and economic puzzles that the Court must confront.

Each justice adds something unique to the mix of experience available among the nine justices.  For example, Justice Samuel Alito, also a Princeton graduate, told the Senate Judiciary Committee during his confirmation hearing that his father experienced discrimination against Italian Americans: “[a]fter he graduated from college, in 1935 in the midst of the Depression, he found that teaching jobs for Italian-Americans were not easy to come by, and he had to find other work for a while.”

All of these experiences give us human beings, talented Americans, who reflect the range of experience in America. Together, they provide the wide spectrum of experiences this nation needs for thoughtful judging of the hard cases.

OBOS: While a female candidate was expected this time around, real progress will be made when a third woman joins the Supreme Court. What are the chances Obama will nominate another woman if a second vacancy arises during his administration?

ECJ: I wouldn’t venture a guess on that, except to note that he is the only male resident of the White House, and he appears to be very comfortable surrounded by smart, confident women in his own family.

OBOS: President George H.W. Bush appointed Sotomayor to the federal bench. Will that have any neutralizing effect on Republican opposition? What will Republicans who want to derail the nomination focus on in their criticisms?

ECJ: The earlier Bush appointment to the district court helps defuse the unfair, partisan attacks.

OBOS: Obama’s announcement, which focused on Sotomayor’s personal story, echoed another “only in America” narrative. Sotomayor’s qualifications are evident, and we’ve heard how much she impressed Obama during her interview. Does dwelling on her personal story give her opponents an open door to challenge the selection and use her opinions to show she’s an “activist” judge who will champion the rights of minorities? Or does it help to build public support for a nominee whose life story is relatable?

ECJ: The personal story introduction is a standard Supreme Court nomination framework.  Every justice now sitting was introduced that way. The personal biography helps to humanize some of our most brilliant jurists and to make it possible for ordinary Americans to relate to these extraordinary Americans.

The lines of attack now being launched were formulated long before her name was made public.  These are standard opposition strategies that have long been used against any democratic judicial nominees, even for lower federal courts.

OBOS: You represented Anita Hill during her questioning before a then all-male Senate Judiciary Committee. What has the Senate and America learned from that uncomfortable experience — in a positive or negative way — and how did it later influence the treatment of women before the committee?

ECJ: Anita Hill’s testimony changed the nation’s understanding of the demeaning effect of sexual harassment and inappropriate sexual innuendo in the workplace. One lasting legacy of those hearings is that we have never again had an all male Senate Judiciary Committee. Since Judge Sotomayor is only the third woman nominated to the Supreme Court, she will be the first to face a committee with both male and female senators.

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