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Sotomayor and the Diversity Argument

By Dan Froomkin
1:15 PM ET, 05/27/2009

U.S. Appeals Court Judge Sonia Sotamayor, President Obama's Supreme Court nominee, would bring needed diversity to a panel still very much dominated by white males.

That's something to celebrate -- unless of course you're not a believer in the value of diversity, which is what a number of Sotomayor's critics are starting to sound like.

Why is diversity important? Why is it particularly important someplace like the Supreme Court -- the ultimate champion of the rule of law and protector of minority rights? Precisely because people from different backgrounds bring different perspectives to bear in the decisionmaking process. And that, the American tradition suggests, leads to better outcomes.

Sotomayor acknowledges that her background -- as a woman, as a Latina, as someone from modest circumstances -- informs her judgment. She has correctly suggested that this perspective has some value, and could even at times lead to wiser decisions than would be made by people lacking similar experiences.

But rather than celebrate this, Sotomayor's few yet vocal right-wing critics are getting awfully close to suggesting that a Supreme Court nominee who is from a minority background, and who admits that her background informs her thinking and judgment, is presumptively disqualified -- in favor of either white men or people who think like them.

Neither her record nor her words suggest that her personal experiences have turned Sotomayor into some sort of outlaw judge. Rather, she seems to fall right into the Democratic mainstream.

But consider what the Wall Street Journal editorial board had to say about Sotomayor today: "She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday....

"Judge Sotomayor's belief is that a 'Latina woman' is by definition a superior judge to a 'white male' because she has had more 'richness' in her struggle. The danger inherent in this judicial view is that the law isn't what the Constitution says but whatever the judge in the 'richness' of her experience comes to believe it should be."

Or the statement from Oklahoma Republican Senator Jim Inhofe: "Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench. Some of her recent comments on this matter have given me cause for great concern. In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."

The American Prospect's Dana Goldstein responds: "Yes. Because the worldviews of John Roberts, Sam Alito, John Paul Stevens, Anthony Kennedy, Stephen Breyer, and Antonin Scalia are not impacted at all by their white male identities. White men are raceless and genderless, haven't you heard?"

Or, as blogger Atrios puts it: "The greatest practitioners of whatever it is we call 'identity politics' in this country have always been white males. The lack of self-awareness of this fact is what is termed unexamined privilege."

Here is the 2001 speech that Sotomayor's critics are citing as Exhibit A of her "identity politics." The supposedly incendiary line: "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."

Suggesting that someone from a background of oppressed and/or minority status might be able to render wiser judgment on some issues than someone from a more privileged status seems uncontroversial to me -- particularly in the context of a bench dominated by white males, and even more particularly in the context of race and sex discrimination cases, which is what Sotomayor seemed to have been talking about.

And here's a less-quoted part of her remarks: "I...believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable...[N]ine white men on the Supreme Court in the past have done so on many occasions and on many issues...

"However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other[s] simply do not care."

She concluded: "I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

As I wrote yesterday, Obama's choice was a concrete expression of his view that justice is arrived at not through cold-hearted calculations made in a vacuum, but by people with varied experiences applying the principles of the founding fathers to the real world.

Kathleen Kennedy Townsend writes in The Washington Post: "In Marbury v. Madison, the decision that established the separation of powers, Justice John Marshall asked the key question: Is this person injured? If we have justices whose life experiences remove them from those who have suffered real injury, they will not make an effort to find a remedy because they won't see that injury. Without empathy, it may be too difficult to note that someone has suffered, to acknowledge that theirs is a real grievance."

The New York Times editorial board writes: "In her rulings, Judge Sotomayor has repeatedly displayed the empathy Mr. Obama has said he is looking for in a justice. She has listened attentively to, and often ruled in favor of, people who have been discriminated against, defendants and other groups that are increasingly getting short shrift in the federal courts. She has shown little patience for the sort of procedural bars that conservative judges have been using to close the courthouse door on people whose rights have been violated."

Calvin Woodward writes for the Associated Press: "Some Republicans scoffed when Obama foreshadowed the selection saying he wanted a justice with a common touch and 'the quality of empathy.' What matters, they say, is judicial skill and fealty to the Constitution.

"But the politics of biography is a game played by all sides in Washington and did not begin with Obama and his own compelling life story.

"Such packaging has animated all recent presidents and their most historic or contentious appointments, to the point that it can resemble a race of the elite for a slice of humble pie.

"Clarence Thomas was introduced as a man raised by grandparents, his mother and nuns in the precursor to a colossal Supreme Court nomination struggle centered on other aspects of his past. Bill Clinton told Americans that Ruth Bader Ginsburg was a 'healer' whose record showed 'what is in her heart.' (She told the room she was a failure as a cook.)

"George W. Bush presented Samuel Alito, son of an Italian immigrant, as 'a product of New Jersey public schools.' And in a to-die-for charm moment, Bush's ceremony introducing John Roberts, now chief justice, was enlivened by the judge's cute children scampering around the East Room."

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