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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."

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.