The Outstater

January 8, 2022

Surviving Sotomayorism 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” — Tenth Amendment to the U.S. Constitution

SONIA SOTOMAYOR’S PATH to the Supreme Court of the United States has been marked by plenty of firsts. Sotomayor, of Puerto Rican heritage, was nominated by President George H. W. Bush to a seat on a U.S. District Court (the youngest nominee ever), and later by President Barack Obama as the the first Hispanic judge to the highest court. 

And her comments yesterday, confusing the distinction between federal and state power as well as quoting wildly off estimates of easily verifiable material, would make her the first member of the court in our era from the “mimic generation.”

This is the generation in a repeating cycle identified by the historian Arnold Toynbee in his study of 60 ancient civilizations. It is characterized by an authoritarian leadership style focused on the wearing of title and decoration rather than on finding solutions or on assessing reality. 

The legal scholar Laurence Tribe predicted as much in a May 9, 2004, letter to Obama advising against the Sotomayer nomination: 

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court . . .”

This type of person — a stereotype, if you will — is constantly trying to guess how a real judge or legislator or councilman would act in a given situation. “Supreme Court judges don’t make stupid factual mistakes,” their syllogism goes, ”and since I am a Supreme Court judge I must not be making stupid factual mistakes.”

Be forewarned that this “mimic” generation follows a “creative” generation but precedes a “failed” generation.

You can see this at work on your city council. There will be a group, still small if you are lucky, that is incurious about the facts of a particular matter as long as they are properly and personally berobed as “councilmen.” They also may expect, even demand, to be addressed as a particular kind of councilman,  i.e., a “caring” councilman or a “conservative” councilman, and that is regardless of voting record.

As you would expect, their official decisions are based on the shallowest of rationales, often the unquestioning acceptance of narrative labels such as citizen “shareholder,” a woman’s “choice,” economic “development,” racial “equity,” tax “investment,” “fair” pay, “running government like a business,” and so forth.

The Republicans on my city council recently drummed out a member their caucus for challenging such empty terms. The quality of both government service and accountability will suffer accordingly.

But here is the most disturbing thing to me: Toynbee was writing about an entire generation not just its leadership cadre. Thus, a Sonia Sotomayor can be confirmed unanimously by a Senate panel after being nominated by both a Democrat and Republican president, all blithely endorsed by an inattentive electorate and a fawning media.

Like it or not, she is us. — tcl


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