It was a real softball question in this hearing filled with talk of “wise Latina women,” guns and abortion. Sen. Russ Feingold threw it straight down the middle on July 14 asking Supreme Court nominee Sonia Sotomayor if she thought the 1944 Korematsu vs. United States was justly decided. He had asked the same question of now Chief Justice John Roberts during his confirmation.
“No sir,” Sotomayor said simply in the straight, dispassionate manner that has been her manner during these hearings, regardless of the hot Latina stereotypes that were put out by pundits before this.
Korematsu — like Plessy vs. Ferguson or the Dred Scott decision — has become shorthand for a case wrongly decided by the court. Sotomayor cited Justice John Marshall Harlan, the lone dissent in the Plessy case, as a role model for a judge who resists personal bias and fears. She could have easily noted the three justices who dissented in 1944 in Korematsu.
During Roberts confirmation hearing, Sen. Patrick Leahy asked if he would be a “Korematsu justice” in upholding the rights of all citizens even during times of war.
It’s good to know that at the highest levels there is an understanding that what happened to Japanese Americans was wrong. But as a clear majority of Americans oppose closing the prison at Guantanamo Bay, it’s clear that principles are easy to adhere to when the case is one from the distant past, not one that is being considered now in a post 9/11 context.
It must be a special burden being the living embodiment of a historic decision. The last time Fred Korematsu was at a public event in Little Tokyo at the Japanese American National Museum in November 2004, he seemed a bit embarrassed by all the attention as everyone scrambled around him to hastily arrange chairs for a group photo.
Six months before he passed away, Korematsu was frail but still passionate about his decision to challenge a government that deemed its own citizens a threat to national security.
“It sort of burnt me up, you know,” he said. “I am American and I had to go to an internment camp. I was really upset. I said, ‘I am not gonna go. I am American and that is what I am. I am going to stay that way.”
Wisdom derived from experience. Something we want in our daily lives and on the highest court.
To watch Sotomayor’s comments on Korematsu click here