Sonia, the White House, and Me

by james s. hirsch

I had never heard of Sonia Sotomayor when my brother called me and said President Obama might need our help with his next Supreme Court nominee.

My brother is Dr. Irl Hirsch, Professor of Medicine at the University of Washington in Seattle, who is one of America’s leading diabetologists. He called me in early May to tell me that he had received a call from Sonia Sotomayor’s doctor, who had a request. It appeared that the judge, who serves on the U.S. Court of Appeals, was on the short list of nominees to replace U.S. Supreme Court Justice David Souter.

Sotomayor’s doctor told my brother that the judge has had type 1 diabetes since she was a child and that she was in excellent health. However – if she were nominated – the White House was concerned that her medical condition might be used by opponents to undermine her confirmation. So the White House had asked him a favor: find a highly respected physician who could write an op-ed defending her.

In theory, an attack against Sotomayor would go like this: a Supreme Court justice has lifetime tenure, but how much “life” would this diabetic justice actually have to give, and would she be able to handle the physical demands of working on the nation’s highest court? Even if her adversaries didn’t believe those were legitimate issues, they could use them in a quiet smear campaign against her.

Sotomayor’s doctor thought that my brother had the credentials to answer those charges. The op-ed’s purpose would not be to defend Sotomayor per se, but to explain how the improvements in diabetes care have allowed patients to live and thrive just as they would without diabetes; how the disease should not be a limiting factor in anyone’s professional aspirations; and how it should be a non-issue in the consideration for a Supreme Court nominee.

The White House told Sotomayor’s doctor that it would place the op-ed in a mainstream publication.

This is where I come in.

My brother told Sotomayor’s doctor that he would be willing to write such an op-ed, but he asked if he could co-write it with me. Irl has published many articles, but mostly in medical journals, while I’ve written a book for lay readers about diabetes, “Cheating Destiny,” and of course I write for diaTribe. As I said, I had never even heard of Sotomayor until my brother called me with the back story, but I was happy to help out.

Sotomayor’s doctor said he had no objections to a co-author, so my brother and I waited for President Obama’s decision on the nominee.

When he announced it on May 26, Irl and I quickly began preparing the op-ed and had it written in 48 hours. We described why improvements in diabetes care should make the disease moot in determining the qualifications of a well-controlled patient, and we wrote that Sotomayor’s diabetes makes her nomination a true medical milestone.

Irl and I submitted the article to Sotomayor’s doctor, who forwarded it to his contact at the White House.

Then a funny thing happened. There was no response from the White House. No calls, no emails, nothing. Our hard work went there and died. The powers that be apparently didn’t need an op-ed defending their nominee against attacks on her health.

Which was actually a very good thing.

For all the medical progress that my brother and I discussed, perhaps the most important sign of progress has been that Sotomayor’s diabetes has created so few stirs. It’s received considerable attention, of course, and is central to her biography – how at age 8, her diagnosis redirected her ambitions: she had wanted to be a private eye, like her hero Nancy Drew, but her doctor told her that was no longer possible, so she pursued more academic interests, which eventually led her to the law. President Obama deftly turned her diabetes into an asset – her ability to overcome it, to manage it, is another sign of her strength of character.

Some right-wing bloggers cited the judge’s diabetes either as a liability or made coarse remarks about her health. But those comments had no traction. The New York Times and other papers published stories confirming that Sotomayor’s diabetes, as long as it is under control, should not affect her duties on the bench. No U.S. Senator is dumb enough to attack a judicial appointment for a medical condition, particularly one as prevalent as diabetes. Republicans realized from the outset that if they were going to block Sotomayor’s path to the Supreme Court, they would have to find something more substantial than her faulty pancreas.

But does her diabetes matter in how she would perform her duties as a justice? Ironically, I think the answer is yes, but in a good way.

President Obama noted that one quality he wanted in his nominee was “empathy” – the ability to understand the plight of others. This, however, was scorned by the opposition. Conservatives pine for “strict constructionists” – judges who impassively apply the law, who segregate their own feelings so their decisions carry a platonic sheen of objectivity. In this scenario, personal experience distorts perceptions, creates biases, and taints the quest for truth. Judges should not feel your pain. They should apply the law. Empathy is bad.

But if this were indeed true, we could just create a computer program with some sort of judicial algorithm: feed it the facts of the case, apply the laws, push a few buttons, and the computer would spit out the correct decision. But we don’t do that, of course. We understand that judges will be guided by laws and precedents but also by their own experience and sensibilities.

In this sense, Sotomayor’s health is a fascinating question – how has her experience as a lifelong diabetic shaped her own view of the world, and how might that affect her decisions on the court?

We can only speculate, but I do know this: she was dealt a bad hand early in her life. So too has every other child diagnosed with type 1 diabetes. To succeed in those circumstances requires a certain mindset. You cannot feel sorry for yourself. You cannot blame others. You cannot play the victim. Rather, you have to accept responsibility, be dedicated, and know that your body will hold you accountable for every decision you make. Chances are, you will not feel pity for those with petty complaints. You know the difference between a real grievance and a flimsy one.

Because Sotomayor is a liberal Latina who grew up amid poverty in the South Bronx, she was assumed to be a soft touch on discrimination claims. Claims by minorities, women, gays, whomever – she would take their side because she finds common ground with the underdog.

So many were surprised when Tom Goldstein, in his SCOTUSblog (SCOTUS stands for Supreme Court of the United States), found that in the 96 race-related cases she decided while on the court of appeals, she had voted to reject discrimination claims 78 times while she upheld the claims 10 times. In other words, she rarely sided with those who presented themselves as victims.

Didn’t surprise me one bit. Sotomayor’s empathy is her asset. She knows what it means to be a victim and will not find common ground with pseudo victims. She knows quite well what it means to be betrayed for reasons beyond one's control. Assuming she is confirmed for the Supreme Court, her triumph will be America’s triumph. I have no idea what kind of judge she’ll be, but if you come to her with a grievance, you better have a damn good case.