Identity Politics and the Sotomayor Nomination
The process of coming to a legal decision should be cerebral rather than emotional.
May 30, 2009 - 12:00 am
Sotomayor’s point of view is meant to celebrate diversity and its “richness.” Instead, it not only insults those white males whose lives are deemed likely to be lacking in the special attributes that would enable them to make decisions that are (in her opinion) as good as those of a Latina, but it abandons as impossible the quest for the judicial ideal of impartiality and equality under the law. Instead, it substitutes an identity politics that would, taken to its logical conclusion, end up requiring an almost infinite number of judges for every decision in order to achieve the requisite mix of sensibilities thought to lead to an aggregate of fairness.
This second goal of judicial diversity gives us a clue as to what was behind the ferocious liberal opposition, and even contempt for, Clarence Thomas. He had a story at least (if not more) compelling than Sotomayor’s. With a deeply impoverished childhood, abandonment by his father, and a mother who worked as a domestic, he was the first in his family to go to college. Thomas’s inspirational early life fully demonstrated the first principle of diversity: America as the land of opportunity for all. But his conservatism went against the second – the liberal/Left notion that a black man appointed to the Court should rule in ways that reflect his race in their eyes, conforming to the majority opinion of his fellow people of color. That is, he should be a liberal judge, or else his special sensibility as a black man is being wasted and his people are being betrayed. Such a judge is no longer an individual who is charged with the duty to exercise his best judgment; he is reduced to being a mere representative of his race.
It is one of the foundations of our legal system that, although a judge may be tempted to let such factors as his or her race and gender influence decisions, nevertheless he or she must mightily and forcibly resist that urge. That is what judicial impartiality and restraint is all about. The process of coming to a legal decision should be cerebral rather than emotional, and the ideal has been that if all justices were equally wise, they would all come to the same ideal conclusion.
Of course, it has always been understood that such an ideal cannot ever be reached in the real world. But the way to come closest to that ideal has always been thought to be to jettison the personal and the ethnic — and supposedly, even the political — in pursuit of it, rather than to embrace them.
Therapists are very different from judges. They deal with emotions rather than facts and law, and must try to help clients come to their own decisions rather than render judgments for them. But therapists face a similar dilemma in their work — how to be aware of the particulars of their own experience, including gender and racial makeup, while at the same time transcending them. Therapists are trained to avoid bringing their own history into the room in a way that will cloud their vision. They may identify with certain clients because of similar life circumstances, but they are required to be highly aware of this and to pay attention to the ways it might actually make it more difficult for them to see the client objectively and clearly. And it becomes too easy for them to project their own feelings inappropriately into the situation. Too much identification with the client is a trap into which therapists must be wary of falling.
That same principle has traditionally been true of judges. Sotomayor’s words indicate that she may lack that wariness. Even worse, liberals appear to be applauding her for it and consider such a lack not only inevitable but desirable.