If Justice is Blind, Sotomayor is Anything But

Prospective Supreme Court justice Sonia Sotomayor has yet to complete the vetting process but already controversy over a comment she made in 2001 has erupted. In “A Latina Judge’s Voice“, a lecture presented at the law school of the University of California, Berkeley, Sotomayor said that her Latina heritage undeniably plays a role in her judgments. “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,” Sotomayor told her audience.

The Associated Press reports President Obama is sure the would-be Supreme Court justice didn’t mean to imply that one segment of the population may be deficient in contrast to another. The President’s spokesman, Robert Gibbs, meanwhile, speculated that Sotomayor regrets her poor choice of words — now. But even if the liberal nominee were to express misgivings about her inflammatory statement — which is unlikely despite compelling others to apologize on her own behalf — the public should not anticipate a change of heart. Regretting a consequence of one’s actions is one thing. Remorse for the bigoted sentiments that shape one’s identity? Don’t count on it.

It’s certainly no crime to be proud of one’s heritage. And it is true that culture informs one’s perceptions. But the problem with Sotomayor’s comment is that it echos the way in which gender and ethnic matters at the activist and university level have been conveyed for far too long: rife with competitive, if not bitter, cultural undercurrents.

Not that academia is entirely to blame.

Human nature has a way of transforming the building blocks of self-understanding into a basis for elitism. A shaky self esteem in search of something to prove — a plight that young, old, rich, poor, ethnic and Caucasians suffer alike — gravitates not toward knowledge for the sake of knowledge, but toward anything resembling a leg up. Dominance is the objective and any perceived advantage, no matter how flimsy, is a means to rationalize one’s appetite for power. For as much as we are a society in pursuit of political correctness, we are even more inclined, historically, even personally, to subjugate one individual or group in order to heighten our own sense of superiority. Self promotion may be an inescapable element of human nature, but does someone who over-identifies with these urges belong in a courtroom?

Critics of those who question Sotomayor’s nomination, among them California Sentator Dianne Feinstein, would like the public and the press to chalk this up to little more than “vitriolic” allegations. But are these concerns as baseless as members of the Obama Administration would like us to believe? Sotomayor, it should be remembered, would not have detractors of this variety had she demonstrated the foresight while composing her 2001 address — and later submitting it for publication in a law journal — to keep controversial, potentially career-limiting personal opinions out of the public sphere.

Had Sotomayor rephrased her sentence even slightly to say she hopes that a Latina would arrive at a better conclusion than “someone” who hadn’t lived that life — as opposed to singling out a “white male” — allegations of bigotry would not exist. In a YouTube clip that further sheds light on the judge’s character, Sotomayor informs a young law student during a Q&A session that the court “is where policy is made”, only to laugh nervously and remark that she really should not have admitted to as much with the cameras rolling. Judge Sotomayor may know better than to suggest the Judicial Branch is in the lawmaking business, but discretion is not, apparently, her strong suit. And because a big part of a judge’s job involves writing legal opinion — Sotomayor presently serves on the 2nd US Circuit Court of Appeals — such lapses in judgment are unlikely to be her first, nor her last.

Eight years ago Judge Sotomayor brazenly said something that has come back to haunt her. Part of being in public life is accountability for one’s words and actions. Those who are afraid to embarrass President Obama or his questionable Supreme Court nominee may not wish to admit it, but accountability and vitriol are not synonymous.

To dismiss out of hand Sotomayor’s self-proclaimed desire to see hispanics prove their mental faculties superior — which by extension implies that whites, for their lack of shared life experience, are inferior — is to lend credence to the allegation that the Obama Administration is engaging foremost in affirmative action: a push to balance the racial and gender composition of the Court at the expense of prioritizing the selection of an individual who is most qualified personally and professionally. Judge Sotomayor, in this regard, has rarely dealt with cases in which her predisposition to view hispanics positively or caucasians negatively, might be expected to come into play. While on the surface this may seem patently ridiculous, closer inspection reveals that it is not a moot point. Why? Because demographers say the racial composition of the United States is in greater flux than ever before, a trend in which hispanics, among other minorities, are projected to become the new majority. The likely outcome is that more cases alleging discrimination on the basis of race will come before the Court in the years ahead. Yet Sotomayor has presided over only one case in which discrimination alleged by whites, in particular, was central to the case. (Not to be confused with other cases in which disputes over procedural errors or First Amendment rights were determining factors.) We know little more than what the judge has told us, and what she has said thus far does not sound all that impartial.

The Supreme Court is a place for individuals who are more passionate about the Constitution than their own particular heritage. The love of law and country comes first in this calling, but Sotomayor’s hubris betrays a competing priority. In academia a fixation on ethnicity will not violate any norms. On the bench, it almost certainly will. And Sotomayor, in that same moment of transparency eight years ago, doesn’t deny it.

It’s time we take the judge at her word.

A few ill-chosen words in the life of an ordinary Juan, John or Janet may be of little consequence. When it comes to serving the highest court in the land, however, there is no such thing as an inconsequential question. If this controversy is to have any redemptive value at all, it is to challenge the notion that being well educated, attractive, successful, pleasant or a member of a select group inoculates one against prejudice — or that prejudice is a transient affliction society has come to outgrow instead of merely deny. If this object lesson seems self-evident, it is anything but a universal truth. In particular, the debate over reverse racism has been raging in academic and multicultural circles for years.

According to some social theorists, minorities are inherently powerless to inflict harm because it is not possible to overcome the institutionalized advantage of the dominant group. Never mind that Sotomayor, as a Supreme Court judge, will arguably occupy one of the most dominate positions this country has to offer! Not to mention that the theory itself is on shaky ground because it denies a basic psycho-social reality: that the best way to produce a victimizer — an individual who perpetuates a cycle of violence and/or hate from one generation to the next — is to suffer the abuses of a victim. But here all fact is fiction and perception is reality: A member of a majority who invokes Sotomayor’s conceptual framework diminishes Latinos’/Latinas’ capacities, whereas a minority who directs the same words toward a white male cannot.

A glaring problem with all-or-nothing logic is the presumption that institutional structures, legal systems and demographic trends are static. Equally egregious, these rigid ideas stereotype women and minorities according to perceived class. An individual is inextricably bound by his or her gender or ethnic history and cannot hope to transcend it. Under the rationale of oppress or be oppressed, prejudice and discrimination are a justified reaction in response to prejudice and discrimination. This circular logic, in and of itself, is a racially-charged concept that serves only to incite the very thought form it seeks to condemn. Hence, hostility toward “The Man” — whomever or whatever that dominate group is perceived to be — is perceived not as a self-destructive emotion closely aligned with self pity, but a counteroffensive form of “self empowerment”.

For better or for worse, Judge Sotomayor has become the public face of this abstract but all-too-real conflict. Sotomayor, however, is not supposed to instigate cultural tensions, rather to arbitrate them without prejudice. She should not receive a free pass merely because her Puerto Rican background classifies her as a minority. If she wishes to affirm the President and his supporters who insist she had absolutely no intention of coming off in a sexist or “racialist” manner, she must acknowledge that justice cuts both ways. For as the cliché reminds us, justice, above all, is blind.

Blind Sotomayor is not. And that is arguably what is most troubling about the judge’s Supreme Court nomination. The Court is not the place for loose cannons or ethnocentrics. What Judge Sotomayor describes as the “richness” of her Latina experience is, in a manner of speaking, a euphemism for an identity crisis. She admits during her lecture, in fact, that she does not know to what extent these factors will sway her decisions, only that they most certainly will. Translation? Objectivity is dead. Competing loyalties may not be a problem the early years of life — or for that matter any other walk of life. But the Supreme Court is not a stage on which to act out lingering personal conflicts.

The Obama Administration can do better than Sotomayor.

Can Americans trust the Obama Administration to admit that their candidate does not fit the highest standards of the Supreme Court? Or will the President and his administration backpedal in attempt to save face? This much is certain: Obama’s words and actions in the weeks to come will reveal his character just as surely as Sotomayor has revealed her own.



Judge Sotomayor, in Her Own Words — Commentary Magazine

The Real Sotomayor Issue — National Review Online

The Sonia Sotomayor debate is a chance to talk it out on race — LA TIMES

Sotomayor: Judges Make Policy — YouTube

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