Lindsey Graham’s Majoritarianism

15 07 2009

On day 2 of the Judge Sonia Sotomayor’s nomination, Senator Lindsey Graham asked a fairly peculiar question. “What’s the best way for society to change, generally speaking? What’s the most legitimate way for a society to change?” At first, Judge Sotomayor was stumped by that question because it seemed academic at best.

He then asks “Do you think judges — do you think judges have changed society by some of the landmark decisions in the last 40 years?” Now it is plainly true that the high court’s decisions on everything from campaign finance reform to the death penalty to gay rights to bilingual education to voting rights to employment discrimination and much more has undoubtedly changed society.  But Judge Sotomayor wisely demured from responding until he revealed his real reason for engaging in that line of questioning.

And in a very patronizing Senator Graham noted “… a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that’s disturbing. Can you understand how people may feel that way?”

Of course, this seems sensible on its face, but it Sen. Graham is ignoring how the courts as an institution differ from legislative bodies. Part of the reason judges to federal courts are unelected and have lifetime tenure is to make sure that political pressures do not override larger concerns about constitutional rights, including making unpopular rulings if necessary, to protect the rights of women and people of color.

Of course, the ballot box is important and is obviously a tranformative vehicle for change in its own right, but the courts can provide a check against the other two branches of government when both are two preocuppied with the popular will. Democracy is more than simple majority rule. It also has to consider the rights of minorities and the individual.

But Sen. Graham also noted:

I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation. So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.

But your speeches don’t really say that to me.

They — along the lines of what Senator Kyl was saying — they kind of represent the idea, there’s a day coming when there’ll be more of us — women and minorities — and we’re going to change the law.

And what I hope we’ll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.
And the one thing that I’ve tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we’re talking about putting you on the Supreme Court and judging your fellow citizens.

And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we’ve got a long way to go in this country…

This statement is the clearest expression of the anxiety white males feel about living in a society with more Judge Sonia Sotomayors and fewer Joe the Plumbers.

Watch the exchange here:




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