Posted Tuesday, May 26, 2009, at 1:51 PM
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.