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

Emily, you pull out the critical quote from Sotomayor's speech: "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."

This quote does not go down easy. As Stuart Taylor pointed out last week, what if Samuel Alito had said: "I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn't lived that life." We would chuck him over to some Idaho compound, no?

Yes, it's true, Sotomayor is unabashedly embracing affirmative action, in a way you don't even hear much on campuses anymore. In that 2002 speech Sotomayor begins by counting up women and minorities, court by court, and then concluding, "sort of shocking, isn't it?" This is not even the subtle kind of affirmative action that UC-Berkeley (where she was speaking) now practices, but the old-school, bean counting kind.

But beyond that, Taylor was being unfair. Sotomayor was not talking about all cases. She was talking specifically about race and sex discrimination cases. In fact, the presence of female judges does seem to make a difference—not on all cases but on sex discrimination cases. Is this bias? Is it some defiance of logic? It seems perfectly natural to me. It does not apply in all cases, obviously (Clarence Thomas). And Sotomayor was a prosecutor in her past life, not a public defender.

Obama's phrase of today—"common touch"—seems all wrong, too, a little quaint and patronizing. But "empathy" and "curiosity"—two of his other words—seem about right. "Empathy" does not mean you lose your mind in a flood of hormone and tears. "Empathy" is not only available to women and minorities. It just means that sometimes you see things other people might miss, if only because you know what they look like.

Tags: identity politics, Sonia Sotomayor, Supreme Court, women judges

Emily, Hanna: To me, Sotomayor's speech is most interesting for its embrace of a way of thinking about identity politics that seems almost mystical in nature: She stresses the experiential over the rational. In beginning the speech with descriptions of the Puerto Rican food she loves, she emphasizes the ways in which we're the products of hundreds of years of culture and genetics; she lavishes attention on a particular "Puerto Rican" way of loving and living to suggest how old and deep our identities are. This is identity politics, yes, but it's bound up with a sensual, visceral sense of the texture of life that I don't usually hear in the language of judges. Beginning the speech that way complicates our idea of judicial thinking as rational and unemotional. Indeed, you might even say Sotomayor does away with the dichotomy of reason vs. emotion; she implies reason is bound up, albeit in some small way, with emotion, or at least with intuition. The current of her argument reflects this complexity; she doesn't mainly argue that women are "different" in how they view the law, she just points out that studies show gender does lead to different outcomes in certain types of cases (about domestic abuse, say). But she takes pains to note that such differences are subtle. The line you single out, Hanna, is indeed cringe-inducing. But as you note, what's on the page is more complex than the sound bytes.

Photograph of Sonia Sotomayor and niece Kylie Sotomayor by White House/Getty Images.

Tags: Sonia Sotomayor; Supreme Court; judges

Accepting Obama's nomination to replace Justice Souter on the Supreme Court, Sonia Sotomayor said:

I hope that as the Senate and American people learn more about me, they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences.

Set aside the choice to describe her childhood—growing up with diabetes in a poor, single-family household—as having been "blessed with extraordinary opportunities." What troubles me is the plea from a woman just nominated to fill one of the most powerful, demanding, intellectually challenging positions in the nation to be viewed as "ordinary."

I thought we'd get a break at least until the next election from the attempts of public figures trying their damnedest to seem like plain old Joe-the-Plumbers and hockey moms. (That dance is especially frustrating to watch when performed by people we respect for their extreme intelligence who are, in fact, vying for positions that demand superior brainpower.) Supreme Court justices have the luxury of being appointed rather than elected, which means they should be free from this silly charade-free to let their brilliance shine. And still, Sotomayor asks to be seen as ordinary.

Is this just another example of a woman downplaying her achievements lest she seem too aggressive or egotistical or bitchy or whatever other negative words get thrown at powerful women? Is such self-deprecation harmful to the rest of us, do you think? Sotomayor is already quite the model of success for women, Latinas, and anyone growing up with economic hardship or health problems (she has had diabetes since she was 8). But does calling herself ordinary set a bad example?

Tags: obama's nomination of sotomayor, Sonia Sotomayor, Supreme Court

If Sonia Sotomayor is confirmed, six out of nine Supreme Court justices will be Catholic. Barbara Perry, a professor of government at Sweetbriar College who is writing a book about Catholic justices went on CNN radio to discuss Sotomayor's nomination. She was joined by Catholic League President Bill Donohue.

Perry claims that "in our politics, religion doesn't matter anymore," but then she added, "I don't think our politics are ready for an Islamic justice at this point." Bill Donohue was more realistic in his assessment of the number of Catholic judges. On the show, Donohue hypothesized that a number of Catholic judges had been nominated by Republican presidents because they "have conservative credentials on issues such as abortion, without the political baggage of terms such as the 'religious right' or 'evangelicals.'"

It's difficult to argue at this point that Catholics or even Evangelical Christians have a disadvantage when being appointed for goverment positions, and it strikes me as odd that Catholicism is still being discussed as if it were real minority affiliation. According to the most recent Pew Religious Landscape Survey, 78.4 percent of Americans describe themselves as Christian, with 26.3 percent identifying as Evangelicals and 23.9 percent identifying as Catholic. These religions are hardly fringe groups.

Although it seems like Professor Perry blurted it out, I think she's probably right: America is not ready for an Islamic or Buddhist or Hindu or any non-Judeo-Christian justice, and it's unclear when they will be.

Tags: Barbara Perry, Catholicism, Religion, Sonia Sotomayor

Sam, I had the exact opposite reaction to Sotomayor’s claims of ordinariness yesterday. My thought was, “How refreshing. Instead of making multiple earnest claims about her vast personal humility, here we finally have a nominee who actually is humble.” Or at least appreciates that she didn’t make it this far on her own steam.

I’m not sure whether Sotomayor’s choice to hide her light under a bushel yesterday was a calculated response to all the blather about how “aggressive” she is, although who would blame her if she decided to go a little fuzzy? As Emily has observed, the double standard about judicial bullying is insane.

One of the qualities that most impresses me in Judge Sotomayor is that she is incredibly honest about how hard it is to be a woman who has succeeded in a man’s world. Whether it’s her frank admission that she was too scared to speak during her first year at Princeton, or the way she has openly wondered about whether women judges are different and why, Sotomayor represents a newer kind of feminist; quite distinct from what we saw in Sandra Day O’Connor and Ruth Bader Ginsburg. Beyond telling tales of being unemployable post-law school both Ginsburg and O’Connor said very little in public about how their gender shaped their thinking. Ginsburg has been more open about this in recent months than she was for decades. I think I like that Sotomayor has dropped the It Was Easy mask and let us see her grappling with who she is and how she got to be that way.

Tags: Sonia Sotomayor; Supreme Court; judges

Dahlia, I agree—the more I digest Sotomayor's Berkeley speech, the more I also appreciate it. Where Sandra Day O'Connor was too macho to admit that being a woman on the high court made her different, and where Ruth Bader Ginsburg is still hesitant to step too far from that party line, Sotomayor is frank and full-throated. She's also not afraid to mull over the thorny and vexed topic of diversity without reaching a firm conclusion or making a wholly linear argument. Bracing, all of it.

Nor does it look to me like her Latina filter clouds her legal judgment. In 2002, in a case called Pappas v. Giuliani, Sotomayor had to decide whether to allow a suit to go foward that was brought by a New York City police officer who was asked, at home, to donate to charity and instead stuffed the reply envelopes with fliers asserting white supremacy and warning against the "Negro wolf ... destroying American civilization with rape, robbery, and murder." The other judges on her panel in the case upheld the firing. It would have been easy for Sotomayor to go along. Instead, she dissented. She called the mailings "patently offensive, hateful, and insulting." But she said the majority "enters uncharted territory in our First Amendment jurisprudence," because the police officer hadn't indentified himself or connected himself with the NYPD. Sotomayor pointed out that he'd sent the mailings outside the office and on his own time. And she concluded that his speech was personal, and so he shouldn't be disciplined for it at work. The bottom line is that Sotomayor cared more about freedom of speech than about punishing racism. That should be reassuring to all the critics who are trying to use her Latina pride to twist her into a small-minded and angry version of that identity. They're wrong. That's not her record.

Tags: first amendment, Sonia Sotomayor, Supreme Court

I agree with Dahlia that humility is rare in Sonia Sotomayor's professional circle, but I do hope this self-effacing quality helps her in the very humbling confirmation hearings coming up. In the context of introducing herself to the American public, however, I doubt, as Samantha wonders, that the judge was downplaying her achievements to counter critics who consider powerful women "bitchy." (But as an aside, I'd add a little self-deprecation in the face of such dazzling glory is certainly not "harmful to the rest.") Although modesty is encouraged in immigrant families, in fact, in the nominee's biographical statement, "ordinary" was an apt comparison to the odds-overcoming determination of her extraordinary mother. Celina Sotomayor, a foreign-born widow with two small children, one with diabetes, worked as a nurse distributing methadone in a drug clinic six days a week to afford rent in a Bronx housing project and her kids' parochial school tuition.

Even a mother who just does the regular impossible decades-long job of educating, nurturing, and economically supporting her children, busts her buttons when they succeed. Imagine the head-exploding pride for Mrs. Sotomayor yesterday, sitting in the White House while the President, her child at his side, praises both her accomplishments and the texture of her life. You can see how well her daughter Sonia was raised, though. In all the excitement, she still understood the importance of thanking her mother.

Tags: immigrant experience, motherhood, Sonia Sotomayor, thank you

Meghan, I agree that the issue isn't really one of reverse-discrimination, even if think Hanna is right that Sotomayor's views on affirmative action may sound dated to some contemporary ears. Rather, the issue, I think, is similar to one that arose during last year's Democratic presidential primary. Then the election was often portrayed in terms of identity politics, much as Sotomayor's nomination is now. It was black (Obama) v. woman (Hillary), with criticisms of either dismissed as so much racism or sexism. But to me, the far more distinguishing characteristic of both candidates, and of Sotomayor, has less to do with their sex or skin color than with their respective ages. Indeed, it's nearly impossible to understand how race or gender played out in their lives until you know when they were born.

Obama, crucially, is 14 years younger than Hillary. As a result, he wasn't part of the civil rights movement. He was a beneficiary of the civil rights movement—and there's a big difference. For all the genuine obstacles he overcame, he enjoyed a kind of ease and place in the world that for many black men (or women of any color) would have been unfathomable even 15 years earlier. By the time he reached adulthood, for example, it wasn't unusual for an accomplished man to marry a graduate of Princeton (which didn’t admit women until 1969). This, in turn, surely informed his and Michelle's relationship and marriage going forward.

By contrast, Hillary wasn’t the beneficiary of the women's rights movement. Being so much older, she was the women’s rights movement—and as a result, her life and career are necessarily messier and full of more contradictions than for younger women, for whom she helped blaze a trail. Much of what people criticized her for during the election—her stridency, her career and romantic choices, her voice and ever-changing hairstyles, even her privilege—always struck me as largely a function simply of her having come first.

Sotomayor is almost exactly seven years older than Obama and seven years younger than Hillary—a lifetime, in many ways, in both directions. She could attend Princeton (as Hillary could not), but was in only the fourth class to admit women—a far cry, presumably, from Michelle’s experience nearly a decade later, when women and minorities were no longer such a novelty. In sum, part of the diversity Sotomayor will bring to the court, if confirmed, is not merely her sex or ethnicity, but how both have interacted with the particular age in which she grew up—which is as different from mine as it is from Ruth Bader Ginsburg’s and Sandra Day O’Connor’s. To that older generation of women, Sotomayor's outspokenness that Dahlia and Emily have alluded to is probably as unfamiliar as it is to women in their 20s. In the confirmation process, it will be interesting to learn how Sotomayor's perspective has adjusted, over the years, as the world has changed around her. But in asking that her present temper her past (rather than the other way around), I hope we won't deny, as I sometimes felt we did with Hillary, the age-related uniqueness of her story.

Tags: ageism, Hillary Clinton, Michelle Obama, Obama, Princeton, racism, sexism, Sonia Sotomayor

A guest post from Yale law professor Heather Gerken:

Over the last day, I’ve been fielding calls from reporters, members of your tribe, many of whom have asked some variation on the following questions: “What role does identity politics play on the Supreme Court, and should those who support civil-rights causes be happy about Judge Sotomayor’s nomination?” (This, for what it’s worth, is almost a direct quote).

There is only one sensible answer to such questions. Please stop. Honestly. It’s embarrassing even to have to say this, but let me spell it out.

These aren’t just the wrong questions; they are silly questions. They begin with the premise, already evident in commentary, that someone who is a woman (or a Latino or from a working-class background) somehow has an “identity,” whereas the other recent nominees to the court mysteriously do not. If you think Judge Sotomayor’s nomination raises questions of “identity politics,” then you should ask yourself what exactly you think is so neutral about the politics of prior nominees.

You might insist that President Obama—and Judge Sotomayor herself—have put her identity at issue, so it’s fair game. But that leads me to the second reason to resist the question. It is one thing to say that all of the justices bring their own histories and experiences to the courtroom. It’s quite another to insist that one’s background gets witlessly translated into votes on specific issues. Surely that’s not a hard distinction to figure out. After all, the whole point of judging is to leverage what one knows about the world and to compensate for what one doesn’t know. It’s exceedingly hard to do it, and judges don’t always succeed. But if we think there’s no possibility that judges will at least try to step out of the bounds of their experiences, it’s not entirely clear why we have courts in the first place. It must be possible to say that Judge Sotomayor—who presumably has had some experience with discrimination, some sense of the dilemmas faced by people without means—might help enrich the justices’ deliberations without assuming that her identity will translate into specific kinds of votes.

I have faith in the possibility that judges can move beyond their histories because I worked for the man whom Judge Sotomayor has been nominated to replace: David Souter. Justice Souter was one of the remarkable judges who consistently looked beyond himself for answers to the questions the court was asked to resolve. Consider his voting-rights jurisprudence. Souter was perhaps the least politically connected person on the court, and he came from a racially homogenous home state with little experience with the Voting Rights Act. Yet Souter ended up carving out a position on the relationship between race and voting that was more nuanced and more pragmatic than his brethren’s. It’s what made him a great justice, and there's no reason to think that Judge Sotomayor won't become one as well.

Tags: Sonia Sotomayor; Supreme Court; judges