Thursday, May 28, 2009

Then and Now

By John Seager

If confirmed to the Supreme Court, Judge Sonia Sotomayor will become its first Hispanic member. We’ve seen quite a few “firsts” in recent years, the latest being President Barack Obama. Perhaps one day we’ll run out of firsts.

Almost a century ago, another Democratic President nominated the first Jewish Supreme Court Justice, Louis Brandeis. Like Sotomayor at Princeton, Brandeis was a brilliant student, setting a grade average record at Harvard that stood for eight decades. Like Sotomayor, the Brandeis nomination provoked speculation about the impact on a key voting block. A commentator of the time wrote in The Nation that, “Old-fashioned politicians read in the nomination a bait for the Hebrew vote at the coming election...” And the Brandeis nomination ran into strong opposition from conservative Republicans.

Perhaps the dumbest comment (so far, anyway) about Sotomayor came from Mark Krikorian at National Review Online. Krikorian whined that “there ought to be limits.” He was referring to the pronunciation of Judge Sotomayor’s name (the emphasis is on the last syllable as is common with Hispanic names). This notion of syllabic supremacy may come as a surprise to Pennsylvania Governor Ed Rendell, whose name also emphasizes the final syllable. Like Sotomayor, he hails from New York City. Like Brandeis he is Jewish. Yes, indeed, this can be a darned confusing nation for those who like everyone to line up in one tidy little row.

Brandeis’s name may come up during the confirmation process. In 1890 he coauthored with Samuel D. Warren one of the most enduring law review articles of all time entitled “The Right to Privacy.” It is often viewed as the leading antecedent of the Roe v. Wade decision that legalized abortion. The 1890 article concluded thusly:

The common law has always recognized a man's house as his castle, impregnable, often, even to his own officers engaged in the execution of its command. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?

The article begins, interestingly, with assertions about the “right to life,” referring to privacy. Today, that phrase has been appropriated by those who have no real regard for a woman’s right to control her own body. If one’s body is not private, what is?

The battles over privacy and women’s rights are neither new, nor likely to vanish any time soon, if history is any judge.

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