Thursday, June 4, 2009

Sotomayor & Blind Justice

Try as I might, I can't understand what is so controversial about the Sotomayor quote that has gained the amount of traction it has; the one where she said in 2001, "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." 

I don't see it as a racist remark, I don't really see how it could be a racist remark, and perhaps more importantly I can see no basis for the position Richard Viguerie took on the May 26th airing of Talk of the Nation:
"My gosh, what happened to the idea that justice is supposed to be blind? Almost in every court in America, we have the statue of Justice there with the scales, and there's a blindfold over her eyes because justice is supposed to be blind. And there's a saying written over the Supreme Court, 'We are a nation of laws, not of men'. And the idea that you take into consideration the status of the defendant instead of what the law is, is a radical, frightening position."
Nothing in the quote, a quote when taken in the larger context of her speech as a whole is clearly about racial and gender discrimination in particular and not judicial philosophy in general, mentions the defendant. It is entirely about the "wise Latina woman" in question; in the context of the speech, Sotomayor was simply postulating that someone with firsthand experience in gender or racial discrimination would be more informed, and more intimately informed, than someone who had not had the misfortune of experiencing the world in such a way. A wise white man may intellectually understand racial discrimination and gender discrimination, but he is missing a the lived day to day moments of that life in this time and place.

Besides which, Justice, in the Plutonian Form, may be always equal and blind, may be objective and always rational and always right. But here on this earth, with all of our flaws and our lives and our biases and prejudices, justice can be blind in a wholly different way than the ideal. Blind in the way an all male, all white Court may - nay, will - have problems fully understanding the difficulties of the Other. In a world where white is raceless and male is genderless, in a world where white equals objective and male equals rational, the "wise Latina woman" may actually be better prepared to handle the prospective minefields of race and gender, because she has had to live intimately with both while navigating a dominant culture predicated on the normalcy of whiteness and maleness. I'm not saying white men cannot work to educate themselves; there are progressives who are truly versed in gender and race dynamics, who own their privilege. But - speaking as a white girl who is at times desperately trying to, and failing to, navigate the different dynamics of race in America and the world - the disparity women face, the disparity Latin@s face, African-Americans face, Asians face, is something that white men are privileged to ignore, even if they genuinely do not wish to. Parts of the world that would be ingrained in a Sotomayor, like not lashing out after being called an "Affirmative Action pick" when she graduated Summa Cum Laude from Princeton, was editor of the Yale Law Review, and has more judicial experience than any of the current Supreme Court justices had when they were nominated, are not ingrained in me as a white woman - and not ingrained in any white man.  

There is a reason this image:

was produced. It is because some white men were finally feeling like they were in the position minorities and women and minority women have been in for almost the entire history of our country. Except, the white men who are freaking out right now only feel like they are in the position minority women and women and minorities have occupied for so long, only feel like they are being reversely discriminated against. Before 1981, no woman had served on the Supreme Court. Before 1967, no African-American had. Before Sotomayor (assuming she's confirmed), no minority woman has. There are a hella lot of us who have been left out of the American dream. Hell, it was only in 1960 that we elected a Catholic president, and Catholics have been here since the damn place was colonized. So, this is really the first time a white man didn't have an almost automatic bid, the first time a white guy was probably not seriously considered. Because there is the acknowledgement that this isn't a white guy's job to have; there is the acknowledgement that different people have different experiences, and 'white' and 'male' doesn't mean 'objective' and 'rational' or 'better' and 'more qualified'. There is the acknowledgement that in a nation as diverse as ours, a white man isn't always going to be considered for the main spot, that the white guy (and let's be honest, the white girl) isn't going to be in the limelight, isn't always going to be recognized. It stings a little. As a conceited and selfish human being myself, I know how it feels to not constantly be acknowledged as the absolute Best Person in the World, to get a head nod but otherwise brushed off.

But seriously, if we are to move forward as a country, we have to recognize that this:
Much is being made of the fact that Sonia Sotomayor had to struggle to rise in the world. But stop and think.

If you were going to have open-heart surgery, would you want to be operated on by a surgeon who was chosen because he had to struggle to get where he is, or by the best surgeon you could find — even if he was born with a silver spoon in his mouth and had every advantage that money and social position could offer?
doesn't really get it. Because whatever you think of Sotomayor's judicial philosophy (and stop by this post to read more about that - and if you're extra nice, comment because it is my friend's birthday today), she is by all accounts an exceptional person - not woman, not Latina, not Hispanic, not New Yorker, though she is certainly an exceptional each one of those as well. She is an exceptional, bright, qualified person. She may not have been born into privilege, but her struggle hasn't made her into a second-rate justice. There is some question about whether she is the liberal answer to Antonin Scalia; but even if she is not (and no one on the Court is), she is enormously qualified to be a Justice. At this point in the process, unless you're Harriet Miers, you don't make it into consideration without being the best of the best. The only thing that separates those nominated and those not are those intangibles that make up any nominating process. Every so often, there comes a time when there is one obvious choice, but generally, everyone on the list is the best surgeon in the country. Everyone on the list 'deserves' to be there. And Sonia Sotomayor deserves to be there.


John said...

I agree that people are making a big stink about how this is an "affirmative action" pick, when in reality it's just not an "old boys' club" pick.

Argh. To say that the terms "reverse racism" and "reverse discrimination" are RETARDED would be ablist, and that's not the message I want to send. Let's leave it as ... ridiculous. That's like saying that when I hit you it's assault, but when you hit me it's "reverse assault." The reverse of racism/discrimination would be treating every demographic equally.

MediaMaven said...

Very much agree with both of you. People always have to make something a controversy; I read Sotomayor's speech several days ago, and I liked it--I tend to agree with her very much, that we all have viewpoints on the world, and that's what makes us valuable, especially in a situation like this.

mikhailbakunin said...

Yeah, if you look at Sotomayor’s comments in context, they’re not particularly damning. I can understand why people are uncomfortable with the use of the word “better,” but if you look at the full quote, she was simply saying that a Latina woman may have a broader perspective on racial issues – which is undeniably true. Judges are shaped by their experiences, just like the rest of us.

I also think that Sotomayor was correct when she said that the bench is often “where policy is made.” Common law is judge-made law. To deny that fact is to deny the reality of American politics.

It’s ridiculous for some conservatives to suggest that Sotomayor is unqualified to serve on the Supreme Court. She has a long judicial career, and while gender and ethnicity were clearly important considerations for the Obama administration, they were not the only considerations. It’s hard to believe that Obama – a constitutional law expert and an exceptionally savvy politician – would choose a judicial lightweight as his nominee. And Sotomayor’s name has been thrown around for years as a potential choice for the Supreme Court.

Like you said, many of the pundits who have called Sotomayor an “affirmative action pick” where rallying behind Harriet Meirs and charging her opponents with sexism. Sotomayor is infinitely more qualified than Meirs, and at the very least, a less obvious affirmative action pick. (At a certain point, it’s not even worth criticizing people like Rush Limbaugh and Ann Coulter. Their hypocrisy is so self-evident that they’ve basically become parodies.)

All that said, I have read a number of Sotomayor’s actual opinions (though, admittedly, many of them were per curium panel decisions), and I’m very uncomfortable with some of her rulings – mainly because I feel that she often dodged the important constitutional questions raised by the appellants. In the Ricci case, for example, the Second Circuit Court didn’t even consider the Equal Protection claims. They issued a six-sentence ruling, citing only Title VII of the Civil Rights Act to justify their decision. (When a circuit court ignores the constitutional claims raised by an appellant, it makes me very uncomfortable. Many constitutional law experts say that this is a tactic used by lower courts to effectively “hide” cases from the Supreme Court.)

I wish Sotomayor’s detractors would actually try to focus on her judicial record instead of her gender and ethnicity.

BTW, thanks for the plug! : )

mikhailbakunin said...

Here's a good piece of commentary from CNN's Ruben Navarrette on how the left and right both play identity politics (albeit in different ways) when it comes to Hispanic judicial appointments -- the Democrats when they brought down Miguel Estrada.

When it comes to political appointments, there's always more than enough hypocrisy to go around.

petpluto said...

"Here's a good piece of commentary from CNN's Ruben Navarrette on how the left and right both play identity politics (albeit in different ways) when it comes to Hispanic judicial appointments -- the Democrats when they brought down Miguel Estrada."

Yeah, I've read it. Plus, Navarrette was on the same Talk of the Nation program as Viguerie was, so he discussed it there as well.

On the other hand, I'm pretty sure this is the first time all four of us have agreed on an issue. Go team!