Identity Politics and the Sotomayor Nomination

For many decades now, ethnic and gender diversity in the corridors of power and influence has been a goal accepted by most Americans. The arguments around it have centered mainly on the strategies by which it might best be achieved, not on whether diversity is a good thing in and of itself.

Democrat and Republican presidents alike have sought to create cabinets that "look like America," and the Supreme Court has had a tradition, beginning with Justice Thurgood Marshall in 1967, of expanding to include blacks and then women. This process is not just to show how open-minded we have become; it is also strategically designed to appeal to minorities and woo their votes.

The nomination of Sonia Sotomayor is, in some ways, just a continuation of this trend. She would be the third woman to have served on the Court and the first Hispanic. Her "compelling" life story has been lauded by both sides, but her views have not -- particularly those she expressed when addressing a 2001 Berkeley crowd gathered (appropriately enough) to celebrate judicial diversity by honoring the 40th anniversary of the appointment of the first Latino judge to a federal district court.

Sotomayor's remarks there highlight a disagreement over the purpose of judicial diversity. There is general agreement on the first principle: Such diversity is an example of the triumph of equal opportunity in our country. We've all come a long way, baby, from the days when only white men could sit in those black robes and attempt to dispense dispassionate and impartial justice in the highest court in the land.

But there is a second and much more controversial purpose for diversity, one to which liberals and the Left are far more likely than conservatives and the Right to ascribe. Sotomayor conveyed this second goal in her speech to that Berkeley crowd: Appointing a judge of an ethnicity and/or gender considered previously underprivileged is a good thing because these traits are -- and should be -- an intrinsic part of the judge's decision-making process and will affect it in ways she feels are positive.

In her speech, Sotomayor stated that she not only accepts that judges would vote differently based on gender and national origins, but that she hopes "a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life," and that judicial impartiality is an aspiration that ignores these realities. That notion flies in the face of the overriding goal of an impartial legal system that is blind to such differences, with judges who are able to treat everyone as equal under the law.

The tension between these two strains of legal thought is not new. We see it in the evolution of the jury system. For example, the movie 12 Angry Men was made in 1957, when juries were still commonly all white and all male. It was only during the 60s and 70s that a series of legal rulings declared that juries, which make decisions about a person's legal fate (and are supposed to do so impartially), must be more representative of America's population in terms of race and gender. Inherent in that idea is that jury members will indeed be likely to bring their gender and racial identities to bear on their decisions -- and that there will be fairer judgments if juries are more representative and diverse.

But juries are composed of untrained citizens. Judges are very different; they are supposed to be rigorously schooled and sworn to impartiality, and this must include the need to transcend their ethnic and racial and gender identities in the interests of justice. That is what Sandra Day O'Connor meant when she made the statement Judge Sotomayor quoted -- and disagreed with -- that "a wise old man and wise old woman will reach the same conclusion in deciding cases."