Kevin Drum is already tired of the Sotomayor story, as he states in a post entitled “Supreme Court Kabuki Watch.”
The nomination of Sonia Sotomayor to the Supreme Court is only 12 hours old and I’m already sick of it. Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire. Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci. And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.
Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court. I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites…
…it’s hard to stop the kabuki once it starts. Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment. It quickly became standardized and applied to all but the most tepid appointments. It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.
Joyner mentions Larison. He’s weighed in on Sotomayor and the National Journal piece by Stuart Taylor. The Sotomayor quote in question: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” The entire speech is up at NYT.
So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.
Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, 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.
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
What goes unsaid here is that this would be the wrong thing to do, which makes it unclear why Sotomayor should be punished for saying something that does not seem in itself all that objectionable. I agree that a double standard exists, which tells me that we should not apply an unreasonable standard equally, but instead should try to police and stigmatize expression less obsessively. Note also that the supposed “claim of ethnic and gender superiority,” as Taylor puts it, is exceedingly weak, if it is there at all. The first quote can just barely be read this way if you really want to read it that way, and the second does not refer to superiority, but only to difference. Since when have people on the right denied or complained about recognition of the importance of real physiological and cultural differences?
Ed Whelan on the quote.
Now, if I were Judge Sotomayor and were asked if being Latina affected the way I did my job, I would answer: Of course, anyone’s perspectives will be shaped by that person’s experiences. But what judges—especially appellate judges—do is interpret legal texts and apply them to cases, and our experiences will not play much of a role in performing that task. And even then it is problematic to suggest that ethnicity and sex can tell us what experiences someone has had and what their effect has been.
So, if someone had asked me to give a speech on “A Latina Judge’s Voice,” I would have tried to make that point early and often. I would have certainly made it at least once. But Judge Sotomayor did not make it at all.
Orin Kerr at Volokh
John McCormack at The Weekly Standard
Kerry Howley in Reason:
This seems completely innocuous to me; being Hispanic in the United States means exposure to both a dominant and minority culture, and one might expect such exposure to favorably affect the process of deciding difficult, marginal cases. But Ilya characterizes the sentiment as left-wing identity politics. Perhaps he would be more impressed if he considered the statement in context. She [Sotomayor] goes on to say that:
We should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group.
While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless 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. 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.
No one person, judge or nominee will speak in a female or people of color voice.
I doubt Sotomayor and I agree on much, but this is a good speech.
Rod Dreher has changed his mind about the quote, after reading the entire speech.
As anyone who knows me can attest, I don’t have what you’d call a strong “Hispanic” identity. Three of my four grandparents are Jews from Eastern Europe. My paternal grandfather, José Yglesias, was a Cuban-American born in Florida. But that puts the family’s actual Hispanic ancestry pretty far back in the past. He grew up in a Spanish-dominant immigrant community, but spoke English fluently. My dad grew up in an English-speaking household and knows some Spanish. I took a semester of Spanish at NYU one summer. And Cuban-American political identity in the United States is heavily oriented around a highly ideological far-right approach to Latin America policy that neither I nor anyone else in my family shares. The Yglesiases emigrated from Cuba before the Revolution, José was initially a Castro supporter, and though he gave that up he and my dad and I all share what you might call anti-anti-Castro views.
But for all that, I have to say that I am really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor. The idea that any time a person with a Spanish last name is tapped for a job, his or her entire lifetime of accomplishments is going to be wiped out in a riptide of bitching and moaning about “identity politics” is not a fun concept for me to contemplated. Qualifications like time at Princeton, Yale Law, and on the Circuit Court that work well for guys with Italian names suddenly don’t work if you have a Spanish name. Heaven forbid someone were to decide that there ought to be at least one Hispanic columnist at a major American newspaper.
EARLIER: Justice Sotomayor
UPDATE #1: Already updated! Noah Millman on Larison’s post.
Jennifer Rubin in Commentary:
Wow, isn’t it grand to live in a country where a Latina can be nominated for the highest court and then treated with kid gloves because everyone is scared to treat her like any other nominee? Not so much, actually.
But let’s be honest: there is a political reality to what Taylor says. Senators, like all politicians, are remarkably sensitive to being labeled “racist” — or the less inflammatory version, “insensitive.” (No, it didn’t insulate Clarence Thomas from a political onslaught but the rules are different, we all know, for a conservative nominee.)
So what do conservatives do? Stick to the point. The point is impartiality. The point is whether, as Richard Cohen notes, it’s time to jettison the mindset of racial favoritism. (”Blatant affirmative action always entailed a disturbing and ex post facto changing of the rules — oops, you’re white. Sorry, not what we wanted.”) The point is what Sotomayor thinks her job as a judge is, as distinct from what the job of a legislator or president is.
UPDATE #3: Jonah Goldberg
And on another related subject, Meghashyam Mali in New Majority tells the story of Miguel Estrada, a George W. Bush appointee.
Yet, despite this stellar resume, the same Senators who stand ready to place Sotomayor on the Supreme Court refused to even vote on Estrada’s nomination. Perhaps the new requirement of judicial “empathy” might be the difference? Sotomayor was, after all, born in the Bronx and grew up in a housing project in that borough. After the loss of her father, she was raised by her single mother. Yet, Miguel Estrada may also bring much “empathy” to judicial decision making. Not only is he a Honduran immigrant, but only reached the United States at the age of 17, with little knowledge of the English language. He joined his single mother and in five years had mastered English and navigated a new culture well enough to graduate with distinction from Columbia University. Whatever challenges Sotomayor may have experienced in her life, it is clear that Miguel Estrada has also overcome many struggles.
David Weigel in the Washington Indepedent on Estrada
Guy Benson at NRO on Estrada
UPDATE #4: On Rush Limbaugh’s comments, Steve Benen.
On Stuart Taylor, Adam Sewer at Tapped.
Among conservatives, the emerging consensus is that Sotomayor is an identity-politics pick. It’s certainly true that Obama has gained considerable kudos by naming the first Latina to the Supreme Court. Yet this is a kind of politicking that Republicans have engaged in as well. Antonin Scalia, the most celebrated conservative jurist of our time, sailed through confirmation despite a decidedly controversial reputation as a brilliant intellectual bomb-thrower. His main asset was the fact that he was the first Italian American named to the Supreme Court, a constituency that Democrats were careful not to offend. Though greatly admired by many on the right, George H.W. Bush’s nomination of Clarence Thomas was widely seen as motivated by a desire to replace Thurgood Marshall with another African American. Absent the role of identity politics, it’s not obvious that Thomas would have been Bush’s first choice. Had the brilliant Miguel Estrada been confirmed to the D.C. Circuit Court of Appeals, one can imagine that he’d be sitting on the Supreme Court instead of Samuel Alito. All this is to say that the identity politics charge won’t stick. If anything, attacking Sotomayor as an “affirmative-action hire” will make Republicans look like bigoted bullies to Latino voters.
Republicans are not allowed to mention Sotomayor’s ethnicity lest they be branded bigots, but every Democrat on cable television harped on her multicultural “diversity” and “obstacle”-climbing. President Obama made sure to roll his r’s when noting that her parents came from Puerrrrto Rrrrico. New York Sen. Schumer stated outright: “It’s long overdue that a Latino sit on the United States Supreme Court.” Color-coded tokenism dominated the headlines, with blaring references to Sotomayor as the high court’s potential “first Hispanic.” (Not true.)
UPDATE #5: Ramesh Ponnuru
Nick Baumann in Mother Jones on Dreher
UPDATE #6: Glenn Greenwald
UPDATE #7: Mark Thompson at The League on the Larison post.
Mark Thompson again.
UPDATE #8: More Larison
UPDATE #9: On kabuki and exhaustion, Will Wilkinson:
God, I hate politics. It really does make people stupid, especially those whose tribe is out of power. When Sonia Sotomayor was nominated, I knew nothing relevant about her judicial philosophy or, much more importantly, about her actual record as a judge. You’d think you’d wait to learn something about this before saying something about her, but no. People just proceeded to go crazy on cue.
UPDATE #10: Julian Sanchez