Heritage & Identity Politics, Sotomayor Edition

Is Judge Sotomayor right to bring up her heritage as a point that will potentially influence her opinions? Yes, and no. The "yes" is the part where we must all recognize our own personal biases if we are to try to approach a subject objectively. Eugene Robinson opines for IBD:

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.

He almost gets it right. So close, yet so ideologically far away. Yes, personal history must be acknowleged before it can be overcome. But, that was not the "whole point" of Sotomoayor's comment--it appeared another time in a different form:

"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." (Emphasis added)

Now, that is a very different remark. It supposes that the experience of one group is superior to that of another.* Specifically, it supposes that "white males" are either incapable of checking their biases before a case or that "white males" are somehow so out of touch with "that life" that they could never reach the best conclusion (or both). Each of these are preposterous conclusions, if we bother to look at history for a moment.

Let us suppose for a moment that Sotomayor intends by "that life" the life of the economically downtrodden and the life lived by minority groups in America. It would seem, then, that the cases worth examining are ones where her experiences as both (growing up in public housing as a minority) would provide relevence; specifically to other cases involving the downtrodden and minorities throughout American judicial history. Our author, Mr. Robinson, after duly noting the exceptional and rare minorities who have recently come into high office, reminds us that, "Aside from these exceptions, the White House and the Supreme Court have been exclusively occupied by white men." This is, indeed, true.

What is also true, is that white men, who often came from backgrounds of wealth and privelege, were responsible for the Civil Rights legislation that leveled the playing field for minorities. White men were also largely responsible for upholding and expanding this legislation in the face of challenges from other white men. White men (and women) could see the troubles of segregation, and participated in the freedom rides and civil rights marches that defined a generation. To be sure, none of the civil rights movement could have existed without the aid, action, and unbreakable will of the minorities who also participated. However, there exists a spectacular record of white men able to, dare I say, "empathize" with groups with whom they had little personal experience.

Would it be true to say that Sotomayor would never reach a better conclusion than a white man? Absolutely not--there are certainly instances where her experience could inform a decision in a way that other experiences might not. But she claimed that this would happen "more often than not"--a much broader claim that would seem to malign the experience and ability of generations of judges that have preceded her. Indeed, this is the point, Mr. Robinson goes on to say:

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.

We just cannot let go of race and past sins. President Obama promised to be the "post-racial" candidate, yet no one can take him seriously on this pledge if he is appointing a candidate who believes that her racial background allows her to "better" decide than others. Surely Obama could have found a candidate who was informed by an ethnic heritage other than the mainstream, but who did not have such an incendiary view towards others' heritage and experience. Exposed to the light of day, Sotomayor has gone on to defend her remarks. As reported in Reuters:

"I do not believe that any ethnic, racial or gender group has an advantage in sound judgment," Sotomayor said, adding that she believed every person has an equal opportunity to be a good and wise "regardless of their background and life experience."

This statement is true, but can we believe that she believes it? Is this a case of a "confirmation conversion," as Senator Lindsey Graham opined today? Her summary dismissal of the Ricci case, something that her fellow 2nd Circuit Court Judge Cabrenas disagreed with, is evidence that she does not believe this. She will, however, most certainly be joining a court that unanimously agreed with Judge Cabrenas in decrying her summary dismissal, saying that the matter warranted a proper hearing.

Most of this discussion is irrelevent, however, as Sotomayor is most certainly to be appointed. After all, says Mr. Robinson:

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.

Mr. Robinson, there is no claim of "white male exceptionalism" happening in the mainstream of the Republican party. Indeed, this is an idea that few Americans would rally behind. Rather, the cries against Sotomayor are against her concept of wise latina exceptionalism and the continued race-bating in a country that desperately wishes to be post-racial. Thank you, Mr. Robinson, for keeping race part of the discussion, decades after the mainstream of America stopped caring whether it associated with blacks, caucasians, east-asians, hispanics, south-asians, or any other sliced and diced ethnic group.

Yes, "White Males [are] No Less Biased Than Latinas," Mr. Robinson, but I grew in a generation (Y) that is tired of paying for racial sins committed by generations far past. I, for one, will pay no more.

* Incidentally, I would not go so far as to say that this is a false pretense of operation, but it is one that flies squarely in the face of the multiculturalist approach to the world, whereby no one culture or experience may ever be called superior to another. The hypocrisay of the left regarding these matters is embarrasing to mention--much in the way that one feels a mild sense of social discomfort when politely pointing out an errant piece of brocolli lodged in between a colleague's teeth. A "wise latina" is allowed to be superior, and this causes them no cognitive dissonance! Any clear-headed appraisal of the world and its various cultures and experiences will show that some are superior to others, especially if we introduce an element of relativity to the equation:

• The experiences and knowledge of the most enlightened eighteenth century philosophoers would be wholly inadequate to engage effectively in modern life.
• The experiences of a modern inhabitant of a sub-Saharan village who grows crops at the level of subsistence would be inadequate to engage effectively in modern American life.
• The experiences of a modern American, ammusingly, would be utterly worthless in the pursuit of basic sustenance at any other time or place in history.
  

It is maddening, however, that when we are dealing with an individual's capacity to read and interpret the rule of law, that these differences should be given so very much credence. The goal of justice is to be blind; she may not always succeed, but it is an open goal. The experiences we should be looking for are not ones of ethnicity, gender, and "identity group," but ones of legal experience and soundness of mind.