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Obama, Sotomayor, and the Political Limits of Personal Experience

Tuesday, July 7, 2009

Will Judge Sonia Sotomayor’s life experience, including attending a private Catholic school, lead to an uncomfortable conclusion—that government-supported school choice is just?

The Obama administration has made Judge Sonia Sotomayor's life story a central part of her introduction to the nation as a Supreme Court nominee. The administration has focused attention on her inspiring, only-in-America path from public housing through elite institutions of higher education to the top of the legal profession.

Judge Sotomayor also clearly believes that her personal narrative is relevant. She has said that race and gender influence judges' views and—somewhat notoriously—that a Latina's richness of experience would enable her to make better decisions than a white male.

Unlike the millions of minority boys and girls who grew up in poverty and were assigned to tragically underperforming public schools, both President Obama and Judge Sotomayor were fortunate enough to attend private schools.

More broadly, the issue of personal narrative seems to be of keen interest to the Obama team. The president's humble beginnings and work as a community organizer and his wife's progress from Chicago's South Side to Princeton and Harvard were key elements of his campaign.

But every life is full of lessons and experiences. The interesting question is which events and examples inform President Obama's and Judge Sotomayor's thinking and conclusions on questions of public policy.

If all of the formative events in their lives play into this calculus, both could be expected to take positions contrary to standard liberal orthodoxy on one important front: school choice. For unlike the millions of minority boys and girls who grew up in poverty and were assigned to tragically underperforming public schools, both President Obama and Judge Sotomayor were fortunate enough to attend private schools, including Catholic schools. Obama, it should be noted, has continued this tradition, sending his children to private schools as well.

Consequently, we might expect to see these experiences clearly reflected in their positions on three contemporary issues.

First, President Obama ought to be a vigorous defender of the D.C. Opportunity Scholarship Program, which provides vouchers to low-income students in the nation's capital so they can attend private schools.

Second, the president should be expected to act forcefully to save America's urban Catholic and other faith-based schools, which are disappearing at a rapid pace, robbing disadvantaged families of desperately needed private education options.

Third, we should expect Judge Sotomayor to decide in favor of school choice programs while on the bench.

In practice, however, there appears to be a limit to the influence of personal experience. President Obama failed to stand up for the D.C. voucher program, and Democratic congressional leaders went after it with a vengeance. If his 2010 budget is adopted, no new students will be allowed into the program, and it will slowly wither away. Similarly, while his Department of Education has $100 billion in stimulus funding for America's schools, neither he nor Education Secretary Arne Duncan has uttered a word about preserving faith-based urban schools.

Of course, it remains an open question how Judge Sotomayor would apply her Catholic school experiences should she be confirmed and face a school voucher case. On the one hand, she might fully appreciate the invaluable gift she was given by being able to attend Cardinal Spellman High in the Bronx. She might reflect on today's low-income urban parents' hopes for great schools for their kids. She might consider the heretofore futile efforts to adequately improve traditional city school systems and the tragic impact on students growing up in public housing units similar to those of her childhood.

President Obama failed to stand up for the D.C. voucher program. If his 2010 budget is adopted, no new students will be allowed into the program.

Or sadly, like President Obama, she might forget this part of her personal narrative because it would lead to an uncomfortable conclusionthat government-supported school choice is just. Such forgetfulness among justices is certainly not unprecedented: Two current members of the Court voted no in the decisive school choice case of Zelman v. Simmons-Harris, despite having attended elite magnet or laboratory schools in their youth. (Justice Clarence Thomas, however, who attended a Catholic school as a low-income child, voted in favor.)

Many conservatives express concern about the consequences of judges making decisions based on subjective experiences instead of more objective guides like precedent or statutory language. But were a voucher case to again reach the Supreme Court, millions of disadvantaged boys and girls would be well served if Judge Sotomayor remembered the formative role that Cardinal Spellman High played in her life.

Andy Smarick is an adjunct fellow at the American Enterprise Institute and a distinguished visiting fellow at the Thomas B. Fordham Institute. He is a former White House education aide and deputy assistant secretary of Education.

FURTHER READING: AEI recently released its first brief on the education components of the American Recovery and Reinvestment Act, the federal government’s stimulus legislation. Smarick will regularly blog on the topic.

Image by Dianna Ingram/Bergman Group.

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