SCOTUS and identity politics: Newyorkricans vs. wise white men

By Michelle Chen May 23, 2009

The crusade for colorblindness has gained momentum in the media scrutiny of Sonia Sotomayor, a reported front-runner for the Supreme Court, and a self-proclaimed Newyorkrican. Amidst tense disputes over Sotomayor’s qualifications and ideological leanings, Stuart Taylor’s latest National Journal column cautions that Sotomayor would embrace a dangerous form of “identity politics” that subordinates true merit to political correctness. Taylor—who blasted Sotomayor’s role on an appeals court panel in the now-famous New Haven firefighter lawsuit—quotes a recently republished speech given by Sotomayor years ago:

"Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others…. "Whether born from experience or inherent physiological or cultural differences… our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases…. I am… not so sure that I agree with the statement. First… there can never be a universal definition of wise. Second, 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.”

Taylor finds this unnerving, arguing, "her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.” At the Progressive, Cristina Lopez of the National Hispana Leadership Institute assesses Sotomayor through a different set of criteria:

Over the last decade, the Supreme Court has been divided on issues that are important to Latinas, including reproductive rights, affirmative action, employment discrimination, health care access, voting rights and education. A Latina justice would more likely understand why Hispanic “appearance” is a deeply flawed criterion on which to base an immigration stop. She would know that Latinos come in all shapes, sizes and looks. She would know that having a Spanish name does not make one likely to be an “illegal alien.”

Lopez also points out that “for almost 200 years identity politics in this country meant that women or minorities could not apply.” Taylor concedes that background—including race, gender and all those other icky identity-politics thingies—does vitally shape one’s worldview. In apparent agreement with Sotomayor, he acknowledges “the fact that no matter how judges try to be impartial, their decisions are shaped in part by their personal backgrounds and values, especially when the law is unclear.” But there’s just something about the way this Latina judge says it that rubs him the wrong way:

It follows that the Supreme Court might well be a wiser body — other things being equal — if the next justice is a Hispanic woman of outstanding judgment and capability. But do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality?

If you’re reading this blog, you might be inclined to say: Well, yes—and dismiss most of this opinion as crusty grumbling from the purveyors of what Taylor himself whimsically calls “tiresome dead-white-male stuff.” But the rationale of colorblindness warrants deeper analysis. A voice on the bench who consciously counterbalances centuries of jurisprudence rooted in white privilege: that’s not seen as a social good but as a diversity point tacked onto a status quo, “all other things being equal.” A woman at the fore of a legal system that has historically criminalized people of her background: this poses an existential threat to the hard-earned status of white male jurists. Who sets the definition of “impartiality”? As the foes of identity politics lay out their logic and expose the political myopia surrounding the next Supreme Court battle, could they be making a case for their own defeat? Image: Washington Post