What Sotomayor Cannot Say

The essential problem of the Sotomayor hearings is that it is being played out on the mythological stage that defines American politics and law. The particular myths at play are: Justice is blind; all Judges do is “apply the law.”

If all Judges did is apply the law, then why aren’t all Supreme Court decisions unanimous? If all Judges did is apply the law, then why do we need more than one Supreme Court Justice?

In a 5-4 Supreme Court decision is the dissent not applying the law or the majority? How can we tell. Why should the standard be who has the most votes? The myth is that the application of the law is a function that can be separated from who you are.

Sotomayor burden is that she confronted this myth with her “wise latina,” 2001 Berkley speech. The underpinning of her comment was a quote from Professor Martha Minnow of Harvard Law School, who states “there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging,” Sotomayor then said that she, “…further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others.”

There is no essential view point; everyone has experiences and views that inform their perspective on events. I feel quite comfortable in saying that if there were a majority of black people on the Supreme Court at the time of Plessy v. Ferguson there would have been no separate but equal doctrine. I also feel quite comfortable saying that if women were the majority at the constitutional convention, women would not have had to wait for the vote till 1922 and that the presence of Native Americans would have changed the outcome.

Identity politics, i.e. perspectives other than that of white males, is anathema in politics. As Eugene Robinson points out, “Being white and male is seen instead as a neutral condition, the natural order of things. Any "identity" -- black, brown, female, gay, whatever -- has to be judged against this supposedly "objective" standard.”

That white men have absolutely dominated the courts and the legislature of this country for the vast majority of our history has had a profound affect on the laws we have.

What Sotomayor cannot say now, but has said in the past is that Justice is served by having a diverse Judiciary. I certainly see parenting differently now that I’m a parent than before. I see and understand marriage differently after being married.

The simple truth is that everyone wants certain outcomes: Law enforcement wants rulings that reinforce and enhance their ability to go after lawbreakers; insurance companies and doctors want decisions that limit their liability; landlords want rulings that make it easier from them to evict tenants and tenants want rulings that make it harder; business owners want less, not more regulation.

What Sotomayer cannot say now is that her “wise latina,” remark was intended to inspire a women and minorities and let them know that their view point is as legitimate if not better as any white mans and that if anything is essential to decision making, it is diversity.