Tuesday, May 26, 2009

Obama's Supreme Court pick has a taste for identity politics

In 2001, during a speech at the University of California, Berkeley, Judge Sonia Sotomayor said, "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." It's an odd line coming from a judge who is traditionally expected to interpret the law without regard to personal biases. But it's also a telling line plucked from a speech that overall rejects the idea of neutral justice and endorses an indentity-politics theory that sees the law as morphing in meaning depending on the sex, race and skin color of the beholder. That's of concern coming from a jurist who has just been nominated by President Barack Obama for the United States Supreme Court.

Elsewhere in her speech at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture, Sotomayor seemed to assume that membership in an identifiable group imposed obligations regarding how people should go about applying the law.

For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach.

She explicitly endorses the idea of identity politics elsewhere, too, approvingly quoting legal theorists who oppose the idea that the law should speak for itself.

[B]ecause I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions.

The problem with this perspective -- and it is a big problem -- is that it means there is no objective interpretation of the law that makes the law knowable (in all its glory and for all its warts) by everybody. The assumption behind the identity politics interpretation is that every X chromosome, bit of melanin and ethnically flavored childhood brings with it a different understanding of what the law means -- not what it should mean (we all have different ideas about that), but what it actually means as it lies there in black ink on white paper.

The law, then, is in the eye of the beholder, to be interpreted according to group identity.

Why is this a problem?

Leave aside the idea that the law, as written, is good or bad. I write often enough about my difficulties with the laws on the books. But whether or not you agree with the law, you can at least stay on its good side (and pick the time and place of your transgressions) by knowing what the law means. Knowable law, fixed in meaning, allows you to plan for the future, know what your protections are, and also know what your risks are.

To know the law has fixed meaning is to have certainty in life.

But if the impact of the law, its protections for your liberty and property and its intrusions into your life are to vary depending on whether judges are white or black, men or woman, or were raised with a certain ethnic heritage, there is no certainty. If, under the law as enforced by the state, "there is no objective stance but only a series of perspectives," then it become overwhelmingly difficult to know your rights, to manage your property and to keep your actions within allowable bounds because you are forever standing on shifting legal sands.

Of course, Sotomayor's endorsement of identity politics is almost certainly situational. How would she react to Chief Justice Roberts stating that he thinks old white men are more likely to reach better conclusions than Latina women? Not with an enthusiastic endorsement, I would guess.

Before we even get into Sotomayor's history on the bench, her qualifications and her temperament, her identity politics have to be addressed.

It's one thing to recognize that we are sometimes biased by our backgrounds. It's another thing to tout such human imperfection as a good thing.



Anonymous Anonymous said...


I refer you to THE MYTH OF THE RULE OF LAW by John Hasnas.

Government based law is arbitrary. It always has been, and will continue to be as long as it exists.


May 26, 2009 3:55 PM  
Blogger Johnny said...

The law is just made up stuff. And it's the guys with the guns that get to say what it means.

May 28, 2009 12:56 AM  

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