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Who Is Wise?

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A few weeks before Sonia Sotomayor was nominated to the Supreme Court, a Princeton alumnus of the Class of 1945 complained in a letter to the Princeton Alumni Weekly: "But the feminization of Princeton seems to be pervasive, invading all activities so that Princeton now seems almost to be a women’s college with a good-sized male contingent. Gone is the distinct masculine flavor of an all-male college. The maleness of the Nassau Inn’s Tap Room has been replaced by a female, dainty, tearoom atmosphere."

The author was not the first, and certainly he will not be the last, defender of the sanctity of male exclusiveness ranting against the erosion of the supposedly higher standards of yore. What is more remarkable is that in 2009, public figures like Limbaugh, Gingrich, Buchanan, Tancredo, Barnes and Rove articulate their attacks on Judge Sotomayor by loudly echoing the cranky elitists from a bygone era, who apparently can’t stand that one half of America might be just as well qualified to runs things as are they.

These conservative icons perpetuate views that were rampant—and openly expressed—on campus when Sotomayor enrolled in 1972. In February 1973, the magazine of the Concerned Alumni of Princeton carried an article by one of the group’s founders lamenting about co-education: "The makeup of the Princeton student body has changed drastically for the worse."

That Judge Sotomayor earned summa cum laude honors in this sometimes hostile atmosphere was doubly impressive. No one with a shred of decency would claim that her professors, some of whom certainly shared the feelings of the Concerned Alumni, were handing out "A’s" to her as a gift. She was even awarded the highest honor Princeton bestows on any undergraduate, the Pyne Prize, recognizing the member of the senior class whose performance "manifested in outstanding fashion… excellent scholarship and effective support of the best interests of Princeton University."

If only all that were going on in the attacks on her credentials were nostalgia for the supposedly good old days of an all-male Tap Room, or even an all-male Supreme Court.

But the view that only a certain kind of person belongs in the club is closely linked to the false argument that the Constitution reveals fixed, clear "law" that only some people (read: traditionalists and conservatives) truly understand and respect. Others outside this club (read: women, liberals, minorities) are always cast as trying to subvert the true meaning of the law when they acknowledge that experience and empathy inevitably play a part in human decision making.

Deciding a Constitutional case—unlike being a baseball umpire—demands that you wrestle with open-ended terms and consider what is a "reasonable" search, or "equal", or "due" process. How can that be done without reference to life experience and differing views shaped at least in part by that experience—or by hearing and appreciating another’s views so shaped?

If the meaning of the Constitution is so clear, why not have only one really smart Justice? Or at this point, couldn’t we just program a computer with all the precedents to tell us the answer? The Court is not a representative body, but if an ancient sage was right in saying, "Who is wise? He who learns from all men", broadening the range of experience on the Supreme Court can only enrich and strengthen it.

Some conservatives—notably Justice Scalia—choose a line of argument that masks their own bias, often called "originalism." This approach is asserted as neutral and legitimate, by claiming that deciding a case today merely requires divining what a clause of the Constitution originally meant. But doing so intentionally limits questions to inherent views and biases of the all white male property owners of 1789 sitting around the Tap Room of their era.

Would outlawing sexual harassment be seen as a valid exercise of federal Congressional power? Probably not to the Framers, who gave women neither a vote nor full property rights. And even if originalism were a valid approach—which many Constitutional scholars doubt—then the logical outcome is that the next Supreme Court justice should be an historian, not a lawyer.

Since long before Galileo theorized that the world was round, there have been cranky old guys arguing that the person bringing change is the radical, citing everything from tradition to Divine immutable law as proof of their own superior wisdom. Putting down the Latina from the Bronx, then, is just the latest illustration of the time honored die hard resistance to change and inclusion.

When Sonia Sotomayor entered Princeton in 1972, the percentage of women undergraduates was roughly equivalent to the percentage of women there will be on the Supreme Court when she takes her seat. One hopes this Court and those observing its workings will offer a more hospitable atmosphere.

 

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