It's rare for a prominent public official to confront identity politics head on, as Supreme Court nominee Sonia Sotomayor did in this 2002 speech at the University of California, Berkeley. She says, "Who am I? I am a "Newyorkrican." For those of you on the West Coast who do not know what that term means: I am a born and bred New Yorker of Puerto Rican-born parents who came to the states during World War II." She talks about what that means in terms of her upbringing—eating "mucho platos de arroz, gandoles y pernir—rice, beans and pork," singing merengue, watching Spanish comedy films, playing with her cousins at her grandmother's house. She mentions that she speaks Spanish while carefully noting that her brother does not, and that this is not a necessary ingredient of Latino identity.

Then Sotomayor grapples with how being a Latina makes a difference in her judging. It's a nuanced take—much more nuanced than the one-liner that's already at the center of attacks on her from the right: "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." What did Sotomayor mean when she said that? She set up the remark by noting the relatively low percentage of women on the federal bench a the time (22 percent) and of Latinos (far lower). She discussed the views of another judge, Miriam Cedarbaum, who cautioned against presuming a gender effect in judging, and who, Sotomayor says, "believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law."

This of course is the standard view of the fair and wise judge, who hands down rulings from on high. Sotomayor doesn't abandon it, but she's not afraid to complicate it. "Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society." Sotomayor's point isn't that women or Latinos speak with one voice as judges. She goes on at length about how they don't. But she also quotes Harvard law professor Martha Minow, who says that "there is no objective stance but only a series of perspectives—no neutrality, no escape from choice in judging." And Yale law professor Judith Resnik, who says "to judge is an exercise of power." And then Sotomayor cites studies showing that women on the bench have more often "upheld women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases." She points out that "wise men" like Oliver Wendell Holmes and Benjamin Cardozo voted to keep sex and race discrimination entrenched.

But Sotomayor tacks back, recognizing that on many occasions "nine white men on the Supreme Court" have proved themselves capable "of understanding the values and needs of people from a different group." Her example here is Brown v. Board of Education, decided in 1954, the year she was born. And then she says,

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect that facts that judges choose to see.

 

This is a realist view of judging, filtered through Sotomayor's particular experience. I take from it her sense that in some cases she sees herself as more sympathetic to women and minorities that come before her than most white male judges would be. Not reflexively, not in all cases, and she's not letting the men off the hook of understanding, either. She's talking about tendencies and predelictions, not hard and fast rules of behavior. What she doesn't do is stick to the old line that wise men and wise women on the bench will necessarily reach the same conclusion. That's a saying associated with Justice Sandra Day O'Connor. It's safer and unthreatening than the complexities Sotomayor introduces here. But Sotomayor's stance lets more light into the process of judging. It's also not far from the pitch Justice Ruth Bader Ginsburg made last month for why the Supreme Court needs another woman. Ginsburg said:

You know the line that Sandra [Day O'Connor] and I keep repeating … that 'at the end of the day, a wise old man and a wise old woman reach the same judgment'? But there are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive."

 

The differences between male and female justices, she said, are "seldom in the outcome." But then, she added, "it is sometimes in the outcome."

So Sotomayor has company. From another woman who's been where she's going.

Tags: identity politics, Sonia Sotomayor, women judges

A guest post from Cornell law professor Eduardo M. Peñalver, who clerked on the Second Circuit for Judge Guido Calabresi and on the Supreme Court for Justice John Paul Stevens:

As some of you have pointed out, considered in the context the rest of her speech, it is clear that Sotomayor merely meant that appointing “a wise Latina woman with the richness of her experiences” to the bench would (on average) do more to improve judicial decision-making than appointing a(nother) comparably wise white male judge. Understood in this way, the comment is benign and, more importantly, almost certainly true.

Crucial to understanding Judge Sotomayor’s argument is the way in which decisions are made in appellate courts. Both the court on which she sits and the court to which she aspires decide cases collectively. This context is crucial because a large body of social science evidence confirms Judge Sotomayor’s contention that ensuring that a group includes people with a variety of viewpoints and life experiences increases the reliability of the group’s decision-making process. Diverse groups are more likely to reach the right conclusion because the different members of the group complement each other’s blind-spots and reduce the likelihood that commonly held, but incorrect, assumptions will carry the day.

In contrast, homogenous groups tend to feed on their own shortcomings because it is more often the case that no one in the group will challenge widely held biases and misperceptions. In one influential study by Samuel Sommers, a Tufts University psychologist, mixed-race mock juries were found to be more likely to discuss a broader range of case facts than their all-white counterparts. In contrast, members of all-white juries were found to be more likely to make erroneous statements, and those erroneous statements were more likely to go uncorrected. As the conservative legal scholar Adrian Vermeule put it in a 2007 article in the Stanford Law Review, “diversity dilutes groupthink and can thus improve both group deliberation and group decisionmaking.”

The cognitive benefits of diversity for collective decision-making point toward the other piece of information necessary to understand Judge Sotomayor’s argument: the demographic make-up of the federal judiciary. The federal bench as a whole is both significantly whiter (81 percent) and more male (75 percent) than the population in general (75 percent and 49 percent, respectively), and this is especially true of the Court of Appeals. Latinos are particularly underrepresented, constituting just 7 percent of all federal judges but over 12 percent of the population of the United States. Do Judge Sotomayor’s conservative critics really want to contend that a greater diversity of life experiences and viewpoints on the federal bench will not make a difference for the better?

Judge Sotomayor could obviously have been a little more precise in choosing her words. Considered in its full context, however, her point was clear enough. Not only was her comment not racist, it should be utterly uncontroversial.

Tags: Sonia Sotomayor; Supreme Court; judges; diversity

I’ve been reading a lot of headlines to the effect that “Identity politics are condescending,” and I’ve come to the conclusion that I have no idea what identity politics are. To me, the phrase has always referred to the dated assumption that the interests of any particular subgroup are best represented by other members of that subgroup. So the expectation is that Sotomayor will represent “Latina interests” or somesuch, an idea she explicitly rejects when she says “No one person, judge or nominee will speak in a female or people of color voice.” But in today’s Seattle Times I am informed that identity politics involve “political payback for an ethnic group or gender.” And elsewhere it just seems to mean diversity for the sake of diversity, or perhaps for the sake of bleeding heart liberalism.

I don’t generally see members of minority groups as vehicles for the interests of some specific class. The reason I care about diversity is that I care about the “expansion of identity creation,” a phrase I think I stole from Reason’s Nick Gillespie. It’s not symbolism I care about; it’s the material way perceptions change when the word “judge” does not automatically call to mind a wrinkled white male, the way unconscious bias fades, stereotype threat loses its grip, and alternative lives become easier to contemplate. It's the obliteration of subtle, silent constraints on behavior, something any libertarian ought to care about.

Of course, when I make this argument publicly, I am accused of playing identity politics. So it’d be super helpful if people would spell out what they mean and what it is they are opposing.

Yesterday, Republican Sen. Lindsey Graham met with Sonia Sotomayor and decided she was not, after all that, a racist. "There is no evidence of that," he said soberly. What did he expect? That Sotomayor would look haughtily down at him and say, "Old white man, you can't cook marcilla for sh--!" Newt Gingrich too has apologized, saying that the word "racist' should not have been applied to her as a person, but maybe, perhaps to her words.

You have to feel bad for Republicans. Throughout the nineties, they reveled in mocking the left for its PC excesses—the self policing, the endless parsing of words, the primacy of emotions over hard, cold facts. Now, with the nomination of a Latina for the Supreme Court, they find themselves trapped inside that same hell.

Sen. Jeff Sessions is perhaps the most pitiable victim. He was rejected for a federal judgeship 23 years ago after it was discovered he may have called the NAACP "un-American" and possibly praised the KKK. Now, he is bending over backwards to play the statesman, saying he "enjoyed the conversation" with Sotomayor. What choice does he have? Joking about the KKK (his defense) ain't as easy as it used to be, and he doesn't want to end up like his old friend Trent Lott. Plus, not four years ago the Hispanic vote was supposed to rescue the Republican party from downfall, and redeem their questionable past.

Of course there is an easy answer to this. It's called the law. If you want "evidence' of "that"—" that" being a jurisprudence you find distasteful or un-judicious, look for it in the briefs.

Tags: jeff sessions, lindsey graham, Newt Gingrich, sotomayor and republicans