Tuesday, May 26, 2009

Sotomayor '76 nominated to the Supreme Court

by Laura Smith-Gary

This morning, President Obama nominated Sonia Sotomayor (Princeton undergrad!) to the Supreme Court of the United States. If confirmed, she will be the court's first Hispanic Justice and only the third woman to serve on the court. As Tommy pointed out in a comment a while back, this would give Princeton a SCOTUS representative who is not Alito. Hurray! Well-educated and experienced, Sotomayor has known she wanted to be a judge since she was ten years old and growing up in Bronx public housing. The Washington Post interviewed her colleagues and associates, who called her a "legal purist" who is not "reflexively liberal" but who "understands the complexity of issues," a tough judge capable of going toe-to-toe with any conservative judge on the court who is also invested in being a mentor and friend to her colleagues and subordinates.

Her detractors, most notably Jeffrey Rosen of The New Republic and his anonymous sources, have said she is "not that smart and kind of a bully on the bench," controlling and nitpicking, overly dependent on her clerks to be her "family" (she is, gasp, divorced) and too assertive. he then mentions, at the end of his article, that he hasn't really read her opinions or talked to "enough" of her supporters or detractors. (Here, Glenn Greenwald of Salon explains why Rosen's article is a "hit job" rather than actual reporting. It's also fun to play "find the sexist stereotype!" in the Rosen article.)

Some of her remarks have also caused consternation -- consternation that, in my opinion, reflects how strongly we see the white male experience as "neutral." In a 2001 address at the U.C. Berkley Law School, Sotomayor said that gender and national origins of judges will affect their decisions (this is a good general article that outlines her positions, decisions, and history) and that a "wise Latina with the richness of her experience" will often come to a better conclusion on a case than a white man. While I am not entirely comfortable with this remark, I think it's telling that many who object to it totally deny the fact that white men's perspectives are also shaped by their experience: for them, white men are the objective standard and any deviation is "identity politics."

During the nomination hearings, the fun will begin in the media and in Congress -- the "white male as neutral and objective" perspective will be out in full force. Watch for buckets of sexism (she's divorced! she's childless! she has too many opinions! she won't be objective about reproductive rights!), a generous splash of racism ("Will she be able to be objective on issues like immigration and actually follow the law?" they'll ask) and of course enough "ACTIVIST JUDGE WHO LEGISLATES FROM THE BENCH AND HAS SO-CALLED EMPATHY" to sink an aircraft carrier. I don't feel unqualified support for Sotomayor -- for instance, I need her to describe her position on the separation of powers and explain why she once referred to judges as making policy. I'm also not pleased that she upheld the Mexico City Policy (Global Gag Rule) against abortion-rights groups, though I understand that she was basing her opinion on the Supreme Court's decision. I very much hope that her confirmation hearings will address these issues and not focus on the fact that she is a woman and second-generation Puerto Rican.

Thoughts on Sotomayor, the nomination process, the media treatment, or the value/irrelevance of gender/ethnicity/class/etc.?


At May 26, 2009 at 11:19 AM , Anonymous Angela said...

I am pleased with the nomination. Judicial expertise and experience is all very well, but much more important is getting a woman on the Supreme Court.

At May 26, 2009 at 11:31 AM , Anonymous Naomi said...

As Sotomayor said: "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male". I agree - white men are incompetent at government, and women, particularly minority or lesbian ones, would do a better job. Certainly it would be better for women to have one of their own in a high judicial position, without those pesky checks and balances to restrain her power.

At May 28, 2009 at 5:28 AM , Blogger TommyD said...

A good post, Laura, but I'm afraid that you're misquoting Judge Sotomayor in the same way that those who are trying to caricature her misquote her. What she said at the Berkeley conference was:

"I WOULD HOPE [emphasis mine] 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."

The omission of the operative clause "I would hope" is not just nitpicking--it alters the whole point she was making. Also important is the context of the remarks: Sotomayor was speaking specifically about racial and sexual discrimination, and went on to note that, even while personal experiences matter, it was nine white men who decided Brown.

At May 28, 2009 at 10:03 AM , Blogger LSG said...

Absolutely right, Tommy, thanks for pointing that out -- I was writing in haste rather than spending the time I should have to look into the background of the quote, and I'm appalled that I blithely repeated it without being clear on the context -- especially since it's become the centerpiece of many conservative attacks. I apologize for the misrepresentation.

Naomi, I see what you're saying, but I think it's important to articulate why a Latina judge is preferable to a white male judge in this case. Sotomayor herself does a good job of describing why that is the case, in the very speech that's been the cause of the confusion. (Here's the text of her speech: http://www.nytimes.com/2009/05/15/us/politics/15judge.text.html I strongly encourage everyone to read the whole thing, it's great! And consists of more than one truncated sentence, imagine that!).

Why do you believe white men are "incompetent at government"? I think many white men are excellent at working in government for the benefit of themselves, many are excellent at working in government for the benefit of other privileged rich straight white men, a generous handful are excellent at working in government for the benefit of everyone including those who are perpetually discriminated against, thousands are mediocre in government whatever their motives, and many are incompetent. The point, I think, is that in this country white men are usually assumed to have a baseline of "competent" until they amply prove otherwise, whereas women, people of color, non-native English speakers, the disabled, and so on are assumed to have a baseline of "incompetent" unless (and even when) they are truly extraordinary. That means there is probably a higher proportion of incompetent white men in government and business than there are incompetent women, people of color, and so on -- but it doesn't mean white men are incompetent. On the contrary, it means they're very good at working the system.

Also, Naomi, I winced at your last sentence. I love checks and balances! I hope Sotomayor has a strong sense of checks and balances, being willing to "check" Congress and the President when necessary (some things aren't legal even if the President really, really wants them to be) and also understanding the Constitutional limits of the Supreme Court's power (not okay to decide presidential elections). If Sotomayor wasn't checked or balanced in some way, it would mean that Scalia and Thomas and Alito wouldn't be checked or balanced either, which is the kind of scenario that makes me wake up screaming.

Angela, I'm also pleased but I wish she was a little more progressive! Her decisions on a couple of 1st and 4th amendment cases have made me a little nervous (ie gave me a short hyperventilating moment of "Oh no this is going to be Souter in reverse NOOOOO"), but I still think she'll be great. I've been trying to read as many of her decisions as I can, and so far I'm liking most of what I see.

I do think that judicial expertise and experience is very, very, very important -- after all, she's being hired to be a judge with a life term, not a pundit. I think we should be very careful to make sure we don't allow the conservative element to make the conversation about whether it's better to have a woman/person of color OR an experienced expert. It's not an either/or situation, not even the least little bit.

I'm sorry for the length of this comment -- and thanks once again to Tommy (and Keith Olbermann, who usually rubs me the wrong way but did a good job pointing out that whole context thing last night on Countdown). I will do better research in the future!

At May 28, 2009 at 10:51 AM , Blogger LSG said...

One more thing: via Feminist Law Professors (feministlawprofessors.com), apparently she's a top-notch teacher.


At May 29, 2009 at 5:16 AM , Blogger TommyD said...

Ah, Laura, the "Souter in Reverse" concern occurred to me too. Like Souter, Sotomayor has almost no paper trail on abortion. (This is somewhat amazing, given that she's authored 150 opinions over 17 years. Then again, she sits on the circuit for NY, CT and VT--states that haven't instituted many restrictions on abortion.) I also don't think her decision in the Global Gag Rule case is all that relevant to cases on abortion rights--it was really a question of presidential powers more than anything else.

From what I have seen, Sotomayor seems like a very humble (and I know John Roberts bludgeoned that word to death, but I think it applies here) judge with a respect for precedent. I don't see her voting to overturn Roe--but I also don't see her pushing for the "Roe of the Future," whatever case that may be. I think that liberals looking for a William Brennan are going to be disappointed. More likely a "visionary minimalist," as Slate put it.

I also think this is exactly what Obama wants. One of the lessons of Roe is that judicial involvement in hot-button social issues doesn't resolve the debate--it just causes the losing side to resent being cut off from the political forum. Note that in all the other Western countries that legalized abortion in the '70s (by legislation), the issue is more or less settled. Yet we have this same national battle every 5-10 years or so, with litmus tests, attack ads, and senators asking oblique questions on privacy, precedents, "superprecedents," and Griswold. Reminds me of the village in "One Hundred Years of Solitude."

(Also note that the fight for marriage equality is being waged more tactfully--in state courts and legislatures.)

Finally, David Brooks (whom I normally find self-satisfied and disingenuous) has an excellent column today:


And to answer his three questions regarding Judge Sotomayor, it's "Yes, Yes, and YES."

At May 29, 2009 at 5:16 PM , Anonymous Dan said...


You say:
"Note that in all the other Western countries that legalized abortion in the '70s (by legislation), the issue is more or less settled."

Where did you get the idea that the issue is settled? Abortion denies that the most basic of human rights, the right to life, is an inherent right that every human being possesses. Abortion does away with equality, and instead asserts the law of the jungle: the extermination of the powerless by the powerful. This issue will not be settled in any country until the laws acknowledge and defend the inherent dignity of every human being regardless of his or her stage of development or state of dependency.

At May 29, 2009 at 6:26 PM , Anonymous Novaseeker said...

Now before I get to the quote in question, let me state I have nothing at all against women serving on the Supreme Court of the United States. I think Sandra Day O'Connor did a very fine job on the Court, and was often a voice of reason between warring factions. And while I disagree with Justice Ginsburg's judicial and legal philosophy, she has served with distinction on the Court.

However: "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"

This quote, which was reported in The New York Times a week or so ago, is both sexist and racist all in one sentence.

A latina woman would more often than not reach a better conclusion than a white male, precisely because she is latina and female. White men just don't have the life experiences necessary to make decisions as well as women, and particularly minority women, according to Sotomayor.

This forms a stark contrast to the position of the two other women who have served on the Court -- Sandra Day O'Connor and Ruth Bader Ginsburg. Both Ginsburg and O'Connor evoked the idea that wise men and wise women would make the same kinds of judgments. That was old school "equity feminism".

Sotomayor is an example not of equity feminism, but rather "gender feminism" -- the proposition which accepts that men and women are different, yet proposes that women are superior to men, and that therefore women should supplant men in power, and eventually men should follow supposedly "female norms" of thought, moral reasoning, interpersonal relating, sexuality and so on. This is the nonsense preached by Carol Gilligan, which has long since been debunked -- yet lives on because it is seductive to women and therefore politically useful.


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