Poster by Favianna Rodriguez
It’s altogether unsurprising that racial politics have dominated the discussion of President Obama’s nomination of Sonia Sotomayor to the Supreme Court. Mr. Obama is the nations first Black president, and Sonia Sotomayor would be the first Hispanic to serve on the Court. The language of “inspiring stories” and “empathy”, discussions of the GOP’s political strategy, and the scrutiny of the Ricci case all advance the explicit assumption that Ms. Sotomayor’s ethnic heritage will skew her judgment. The underlying tension in these conversations seems to be whether we live in a “post-racial” America or not. The answer, of course, is that we don’t live in a post-racial society, and moreover, that the very idea that a “post-racial” society can emerge in the way it’s constructed– as colorblind utopia where equal opportunity naturally abounds– is totally impossible.
King Anyi Howellover at Youth Radio in Oakland made this point with surprising efficiency last week:
I say, we will know we have reached a post-racially polarized nation when people stop using the word “race” at all. Until then, I’ll keep writing about it.
Mr. Howellover discusses his experiences with racial profiling in Oakland and points out that it doesn’t matter who’s in the White House. Despite the polemics at the highest levels of government, race is still an important qualifier of experience at the street level.
Why would we bury our heads in the sand and, like Stephen Colbert’s satirical persona, pretend that we don’t see race when it’s right in front of us. It affects the perspective of Ms. Sotomayor no less than it affects the perspective of white men like Justice John Roberts. Mr. Roberts, of course, might be (and is) less disposed to challenge the status quo, but nevertheless, it doesn’t make Ms. Sotomayor’s perspective any less valid as a point of departure. Much as Mr. Howellover contends that it’s an imperative to keep writing about racial experience to address the problems of inequality, doesn’t having a diversity of experiences on the court, experience being a necessary contributor to judgment, ultimately help address problems of inequality?
Writing in the Wall Street Journal, conservative thinker Shelby Steele is cynical about the nomination and the prospects for racial equality. Mr. Steele argues that Ms. Sotomayor’s nomination is a “predictable” and “hackneyed” move that panders to the concerns of identity politics and flies in the face of Mr. Obama’s post-racial supposed status. Besides making the obvious claim that post-racial thinking is a pleasant illusion accepted by both whites and minorities, Mr. Steele contends Ms. Sotomayor is an archetypal racial “challenger” in that she believes that identity status justifies preferential treatment:
Sonia Sotomayor is of the generation of minorities that came of age under the hegemony of this perverse incentive. For this generation, challenging and protesting were careerism itself. This is why middle- and upper middle-class minorities are often more militant than poor and working-class minorities. America’s institutions — universities, government agencies, the media and even corporations — reward their grievance. Minority intellectuals, especially, have been rewarded for theories that justify grievance.
In other words, by nominating Ms. Sotomayor, Mr. Obama has committed the cardinal sin of refusing to ingore the inequality in our society and thereby slandered the great country that has given Mr. Obama and Ms. Sotomayor a chance to succeed.
Buried within Mr. Steele’s logic is the assumption that as a minority who recognizes the disadvantaged position of minorities in our society, Ms. Sotomayor cannot be trusted to make judgments that reflect the letter of the law. Furthermore, Mr. Steele does everything besides explicitly state that as a minority Ms. Sotomayor has benefited unjustly from her identity status and is unqualified to be anything other than a “community organizer.” Perhaps most disturbingly, Mr. Steele seems to hold the disingenuous assumption that Mr. Obama could not have authentically selected a minority judge to serve on the Supreme Court unless the person was a relentless denier of minority disadvantages.
Mr. Steele’s implicit claims are all disputed in an editorial which appeared in The Nation. As it turns out, Ms. Sotomayor is not a catagorical racial chauvanist on the bench, and she is thoroughly qualified to serve on the Supreme Court. The ediotrial charts right-wing response to Ms. Sotomayor’s nomination, but it might as well be addressing Mr. Steele’s grievences:
Every element of this right-wing assault is false. Judge Sotomayor graduated summa cum laude from Princeton and served as an editor of the Yale Law Journal (as did Justice Samuel Alito). Her seventeen years of experience on federal courts vastly outstrips the combined years of experience John Roberts, Antonin Scalia and Clarence Thomas had when they were nominated–seven in total. As the author of more than 700 opinions, she has proven herself to be a pragmatic centrist cut from the same cloth as Obama. Indeed, unlike Justice Ruth Bader Ginsburg or Justice Thurgood Marshall, she was not a central member of the legal movements to advance women’s and minorities’ rights. For example, she once voted down a constitutional challenge to the global gag rule on abortion. Moreover, she has on occasion disappointed progressives with rulings in favor of corporations.
A side-by-side portrait of Ms. Sotomayor and Justice Clarence Thomas in the New York Times (registration required) makes a nice argument on how two minorities with similar experiences might end up on opposite ends of the racial political divide.
The two may sit together on a court that is struggling over whether race and ethnicity should be a factor in legal thinking, each pitting his or her hard-won lessons against the other’s. Both judges are passionate about minority success, dedicating countless hours to mentorship. But Judge Sotomayor sees herself as the successful product of diversity initiatives, whereas Justice Thomas, who thinks of himself as a scarred survivor of those efforts, believes they often backfire.
The ultimate question, of course, is not whether Ms. Sotomayor believes that racial initiatives have the power to advance the position of minorities in our society. The question is whether she has the judicial qualifications to evaluate legal arguments based on their merit with regard to the legal precedent. If we assume that deniars like Clarence Thomas can do so despite his experience as a minority, we must believe that Sonia Sotomayor can do so as well. We should value their personal differences of opinion on race, and similiarly, we should be happy they have opinions at all. After all, justices are people who have diverse experinces in life and with the law that lead them to their judicial opinions. Their experiences with race should vary because there’s nothing post-racial or equal about a homogenous Supreme Court.