On May 26, President Obama nominated Federal Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter. Before the president announced his selection, he stated he was not just looking for someone with just "ivory tower learning"; he wanted "intellectual firepower" as well as a "common touch" and a "practical sense of how the world works." He also used the word "empathy" several times. It did not take long for the critics to weigh in and challenge the nomination.

    What is troubling about the criticism is that most of it is intentionally not directed at Judge Sotomayor's record as a jurist and opinions that she has rendered. Most of the criticism is deliberately based upon select statements made in speeches or lectures that, as was the case with Rev. Jeremiah Wright. They have been contextualized in the most inflammatory way possible in order to scare white people.

    In 2001, Judge Sotomayor gave a lecture focusing on Latino and Latina presence in the judiciary entitled "A Latina Judge's Voice." The focus of her lecture was on the tensions or conflicts between the cultural diversity that America professes to appreciate versus what American's are willing to tolerate. She states, "America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud." Judge Sotomayor is absolutely correct. She is describing the hypocrisy of America's ideals vis-à-vis American's realities.

    In this lecture, Judge Sotomayor goes on to describe her background and life experiences and how those experiences have shaped her existence and perceptions of reality. From there she goes on to say, in the context of a discussion regarding how, "... seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white male" that "... I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." How can a court consisting of a majority of jurists who have never been exposed to the realities of the people that come before it, reach a better, more informed conclusion than someone who has lived and understands those realities? Theoretical constructs vs. practical realities.

    She is not saying that she is better than anyone else or that others are beneath her, as Sen. Lindsey Graham (R-South Carolina) continues to say. She is merely recognizing that we are all products of our environment and as human beings, "Personal experiences affect the facts that judges choose to see." This is a reality that too many people, particularly men like Senator Graham, refuse to appreciate.

    Other conservative spokespeople are calling Judge Sotomayor a racist. Former US Rep. Tom Tancredo charged, "I'm telling you she appears to be a racist. She said things that are racist in any other context." Tancredo described La Raza as a "Latino KKK without the hoods or the nooses ..." Rush Limbaugh has said, "Here you have a racist - you might want to soften that, and you might want to say a reverse racist ... Obama is the greatest living example of a reverse racist, and now he's appointed one ... she brings a form of bigotry and racism to the court akin to that embraced by former KKK Grand Wizard David Duke."

    Inherent in the arguments of Graham, Limbaugh, Tancredo and others is the misplaced assertion that the Supreme Court has been a bastion of unbiased, nonideological, race-neutral jurisprudence. Nothing could be further from the truth. All they and others like them are trying to do is retain the protections and privilege that they have been able to enjoy for centuries in America. Their arguments are specious at best.

    It is important to understand some things about the Supreme Court. The first justices were appointed in 1789. In the 220-year history of the court, 110 justices have served. Of those 110, 98 percent of the justices have been male and 98 percent of the justices have been white. If, as stated in the Constitution, "judicial Power of the United States shall be vested in one supreme Court ...," can justice truly be served when the Constitution has primarily been interpreted by white men for the interests of white men?

    It was Chief Justice Roger Taney who wrote in 1857 in the Dread Scott ruling:

"They (Africans in America) had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect."

    In 1896, the Supreme Court upheld the constitutionality of racial segregation in public accommodations under the doctrine of "separate but equal." Justice Henry B. Brown declared,

"We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

    This decision was handed down by a 7 to 1 vote and remained the standard doctrine in US law until it was repudiated in the1954 Brown v. Board of Education decision.

    These cases are just two examples of how the court has been used to support, codify and institutionalize the ideology of white supremacy in America, and this battle continues to this day. If the court is as unbiased, nonideological and race neutral as many would lead people to believe, why did America need a 13th Amendment to the Constitution to abolish slavery, a 14th Amendment to grant African's in America citizenship and a 15th Amendment to provide African-Americans the right to vote?

    Much ado is also being made of Judge Sotomayor's comment that the "court of appeals is where policy is made." When you take into account the court's interpretive powers as well as judicial review, the court can and does influence and make policy. By interpreting the provisions of the Constitution, laws and policies, the court, in effect, can change them.

    Beginning in the 1870s, intensifying in the 1890s and through the 1900s, the court invalidated laws that regulated child labor, maximum hours of work and minimum wages for work. In 1935 and 1936, the court struck down 12 Congressional laws, nearly nullifying Roosevelt's New Deal program. The court has limited antitrust laws and the ability of workers to join unions. These are clear examples of how the court can legislate through their decisions and not violate the concept of separation of powers.

    Wendy E. Long of the conservative Judicial Confirmation Network described Judge Sotomayor as a "liberal judicial activist of the first order." Many will agree that this term is a political assessment used to inflame public sentiment not a legal one. It is often times used by individuals and groups to describe a jurist who renders decisions that they perceive to be against their limited interests. For example, a judge who finds in favor of a woman's right to choose may be viewed by pro-life groups as an activist. This is why many of the groups in opposition to Judge Sotomayor are not opposing her based upon her judicial decisions. In the one case that conservatives reference, the Kyl case, Judge Sotomayor was a part of three-judge appellate panel that unanimously upheld established precedent. She was not legislating from the bench; she was following established law.

    President Obama said he was looking for an empathetic jurist. Conservatives are using this word to demonstrate that Judge Sotomayor cannot be trusted to be impartial and will interpret the circumstance to fit the law, not the law to the circumstance.

    Empathy is a quality that contributes to our ability to be human. One's ability to use their own experiences as a basis for understanding the similar experiences of others assists a person in making fair, just and rational decisions. As part of the ruling class and a beneficiary of the ideology of white supremacy in America, it is easy for the Graham's, Limbaugh's and Tancredo's to scoff at a reference to empathy. Those in power, those with the voice, don't need it.

    Those who really know the history of the Constitution understand that having been subjected to the injustices of a brutal king, the framers of the Constitution were empathetic to the concerns of those who understood the need to protect the rights of the minority from the tyranny of the majority. That's why the Bill of Rights was added to the Constitution. Empathy versus ideology on the court? Give me empathy.