Holmes’s central point was that the Constitution does not embody any fundamental principle defining the relationship between man and the state—a point that would come as news to the Founding Fathers, who expressly declared their intention to form a government that would protect individual rights against the state. In Holmes’s view, it’s not a document for preserving liberty or implementing any political view at all. Rather, it’s an empty vessel into which society pours its ever-shifting, subjective opinions of what conduct should be permitted and what should be banned.
The Sotomayor nomination is a logical consequence of this Holmesian orthodoxy. If the Constitution is not anything in particular, then we don’t need Supreme Court justices who are committed to interpreting it objectively—there’s nothing substantial to interpret. And if there are no enduring individual rights, then the Court’s job is simply to make sure the Constitution is not seen as imposing obstacles to the process by which social views coagulate into law.
Since white males, on this view, have historically shown themselves most likely to block social progress by overturning laws based on some imagined constitutional barrier, the Supreme Court needs to “represent” women, Hispanics, gays, and a hundred other counterbalancing political pressure groups. Sotomayor is by this standard the perfect nominee. She will give free reign to her “Latina soul,” unburdened by any need for impartiality or objectivity. Impartiality, in her words, is nothing but an unreachable “aspiration” which “denies the fact that we [women and people of color] are by our experiences making different choices than others.” Objectivity? No such thing. “Personal experiences affect the facts that judges choose to see,” she casually admits, and in any event, “‘there is no objective stance but only a series of perspectives.’” The bottom line? A Latina judge will typically “reach a better conclusion than a white male who hasn’t lived that life.”
