A Sotomayor Sense of Justice
The only real suspense in the confirmation hearings for Supreme Court nominee Sonia Sotomayor is whether the Republican Party will persist in tying its fortunes to an anachronistic claim of white male exceptionalism and privilege.
Republicans' outrage, both real and feigned, at Sotomayor's musings about how her identity as a "wise Latina" might affect her judicial decisions is based on a flawed assumption: that whiteness and maleness are not themselves facets of a distinct identity. Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" -- black, brown, female, gay, whatever -- has to be judged against this supposedly "objective" standard.
Thus it is irrelevant if Justice Samuel A. Alito Jr. talks about the impact of his background as the son of Italian immigrants on his rulings -- as he did at his confirmation hearings -- but unforgivable for Sotomayor to mention that her Puerto Rican family history might be relevant to her work. Thus it is possible for Sen. Jeff Sessions (R-Ala.) to say with a straight face that heritage and experience can have no bearing on a judge's work, as he posited in his opening remarks yesterday, apparently believing that the white male justices he has voted to confirm were somehow devoid of heritage and bereft of experience.
The whole point of Sotomayor's much-maligned "wise Latina" speech was that everyone has a unique personal history -- and that this history has to be acknowledged before it can be overcome. Denying the fact of identity makes us vulnerable to its most pernicious effects. This seems self-evident. I don't see how a political party that refuses to accept this basic principle of diversity can hope to prosper, given that soon there will be no racial or ethnic majority in this country.
Yet the Republican Party line assumes a white male neutrality against which Sotomayor's "difference" will be judged. Sessions was accusatory in quoting Sotomayor as saying, in a speech years ago, that "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate."
This is supposed to be a controversial statement? Only, I suppose, if you assume that there are judges who have no opinions, sympathies or prejudices -- or, perhaps, that the opinions, sympathies and prejudices of the first Hispanic nominee to the Supreme Court are somehow especially problematic.
There is, after all, a context in which these confirmation hearings take place: The nation continues to take major steps toward fulfilling the promise of its noblest ideals. Barack Obama is our first African American president. Sonia Sotomayor would be only the third woman, and the third member of a minority group, to serve on the nation's highest court. Aside from these exceptions, the White House and the Supreme Court have been exclusively occupied by white men -- who, come to think of it, are also members of a minority group, though they certainly haven't seen themselves that way.
Judging from Monday's hearing, some Republican senators are beginning to notice this minority status -- and seem a bit touchy about it. Sen. Lindsey O. Graham (R-S.C.) was more temperate in his remarks than most of his colleagues, noting that Obama's election victory ought to have consequences and hinting that he might vote to confirm Sotomayor. But when he brought up the "wise Latina" remark, as the GOP playbook apparently required, Graham said that "if I had said anything remotely like that, my career would have been over."
That's true. But if Latinas had run the world for the last millennium, Sotomayor's career would be over, too. Pretending that the historical context doesn't exist -- pretending that white men haven't enjoyed a privileged position in this society -- doesn't make that context go away.
Yes, justice is supposed to be blind. But for most of our nation's history, it hasn't been -- and women and minorities are acutely aware of how our view of justice has evolved, or been forced to evolve. Women and minorities are also key Democratic Party constituencies, and if the Republican Party is going to be competitive, it can't be seen as the party of white male grievance -- especially in what is almost certainly a lost cause. Democrats, after all, have the votes to confirm Sotomayor.
"Unless you have a complete meltdown, you're going to get confirmed," Graham told the nominee. He was right -- Republicans probably can't damage her. They can only damage themselves.