Those of you who are interested in Sotomayor's record as a judge can
see here. Those interested in her reputation among lawyers,
see here. Those who think that her opponents might have a little bit of a point where the Ricci case is concerned (the "reverse discrimination" case currently before the Supremes, about throwing out a firefighter promotion test because virtually all the people who scored well on it were white), should
see here. (Short version: Sotomayor's ruling in that case was in line with two other judges and according to precedent; the exact opposite of radical, activist, personal-agenda-driven decision-making).
And on that note, those of you who are interested in the arguments about Sotomayor's confirmation, keep reading.
So the criticisms of Sotomayor are falling into two camps, basically.
1. She's a
racist who favors Hispanics over white people. This would be the
idiot argument, designed to appeal to "the base," i.e., to people who consciously or un- are genuinely afraid of change and fear that a black president or a Latina judge will discriminate against white men.
2. We have to make sure that Sotomayor's
"feelings" and "personal preferences" don't affect the way she judges. This is the "respectable" argument, as dictated by today's Republican congressional talking points. (If you don't believe me, look at the link and notice how almost every republican uses those words.)
It really should go without saying that the concern over Sotomayor's possible failures of "objectivity" is a total code for "omg she's a woman (therefore emotional, not rational) and she's not white (so she'll rule for her homies).
It's interesting, then, to compare the "evidence" for Sotomayor's lack of objectivity--her
Berkeley talk "a Latina Judge's Voice" with the
recent New Yorker essay about Roberts, which does a bang-up job of demonstrating the way that *his* subject position--upper-middle class white guy--has informed his judicial philosophy. I think this is a much more interesting comparison than the one people keep making to
Alito, because it shows why diversity matters, as opposed to showing that judges can talk about diversity
without it affecting their actual decisions.
Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.
The piece goes on to demonstrate how Roberts's personal background--"his father was an executive with a steel company and his mother a homemaker. . . . He was the classic well-rounded star student—valedictorian and captain of the football team"--sheds light on the apparent contrast between his hard-line conservatism and personal charm. He can be a "nice guy" (see the essay's title)
and a hardass *because* he comes from a background of relatively easy privilege. The status quo works, and has worked, very well for him: it makes complete sense that he'd uphold it.
Now, my point isn't that this makes Roberts a bad guy. It's that this is why diversity is important. It *is* important to have people in positions of power who are able to make the case that the status quo works, who are conservative in the little-c sense, reluctant to rock the boat. Roberts, an incrementalist, doesn't really satisfy the radical big-C Conservatives, who wish he'd just sweep Roe v. Wade (for example) away; but there are others on the court (Alito, Scalia) who represent that point of view.
On the other hand, we have exactly one person on the court (Ginsburg) who is willing to argue for what is really a fairly mainstream point of view, that
diversity is in and of itself important, because it affects outcomes. That might be a position that some people don't *agree* with, but it's not especially radical, and Sotomayor's
main speech about the importance of representation isn't, either. Quite apart from the question of her gender and ethnicity, the reason that the Supreme Court has more than one person on it is because the legal system relies on a presumption that *different viewpoints should be heard*.
I, and those who agree that diversity is important, would argue that this fact makes the role of people who represent *and support* diversity doubly important on the court. But even for those who think that "fairness" means being "objective" (and that objectivity is possible), who find arguments like Sotomayor's bothersome, can't really argue very convincingly that that speech voices some shockingly radical viewpoint, or that it's going to be terribly dangerous to have two whole people out of nine that believe the law has an interest in diversity. They can't even argue it unconvincingly for very long without starting to sound kinda racist, especially not when the candidate in question is (as usually happens with "firsts") *more* qualified in terms of experience and background than most of her proposed peer group.
For instance, see this
cogent piece about the difference between affirmative action, which "means casting a wide net in search of highly qualified candidates" and tokenism, which "means reaching for the nearest woman or person of color around, regardless of his or her qualifications." That's the difference between an argument for diversity and the argument that's being put forth against it. There are definitely decent arguments to be made against the representation = fairness concept:
here's one (I think, for the record, that Coates's point is largely irrelevant--we're talking about white males on the supreme court, not Appalachian coal miners here--though obviously Roberts and Souter are not identical). But I haven't seen anyone quibbling about Sotomayor's appointment using decent arguments about that particular issue.
I don't know why not; after all, it's not as if there's anything wrong with saying, frankly, that one opposes such-and-such a nominee because one objects to his or her on ideological and political grounds. (It's interesting, actually, that Obama himself
did just that. In fact, I'm certain that this sort of willingness to just freaking
be honest about one's motivations is a big part of Obama's appeal.) I'm not sure what it means that Republicans and most conservatives* won't just come out and say they oppose her on partisan grounds and are preferring to talk about her "qualifications" or "personal preferences." God knows it's fucking stupid to use obviously coded language that raises red flags about possible sexism and/or racism when the alternative--"I want someone more conservative"--is perfectly valid. But in any case, it's pretty clear that Sotomayor isn't the issue here.
*I've spent at least half an hour searching for an editorial from a day or two ago by someone who used to work for the Reagan administration basically telling conservatives not to be idiots, but can't remember the author's name or what paper published it. The jist was that he (the author) doesn't wake up in the morning thinking about being a knee-jerk Republican, and that the party needs to stop being so batshit rigid. Anyone who knows which piece I'm thinking about, please remind me?
Labels: gender, race, SCOTUS, sotomayor