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Sotomayor and the Diversity Argument

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."

By Dan Froomkin  |  May 27, 2009; 1:15 PM ET
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If Sen. Inhofe is significantly concerned with legislating from the bench, he needs look no further than the Hill for the reason. Congress has, over the last 100 years, abdicated legislating and abandoned it to the executive in the form regulations. Too often, in my opinion, what is viewed as legislating from the bench is only judgment based upon a lack of clear Congressional intent and Executive interpretation.

Posted by: fnroth77 | May 27, 2009 1:53 PM | Report abuse

Yes, diversity. All Yale or Harvard but one. All Jewish or Catholic. Uh, NYC. Uh, where's that diversity of thought and work experience again????

Oh, it's important to "look like America."

So, uh, we are overrepresented on black and white men. And on Hispanic females.

Here's the ratio: 9 members. 3 or 4 white men, 3 or 4 white women, 1 black, either sex. 1 Hispanic. We got it except gender. And age. And background. And geography. And socio-economic background.

So, we have an unbelievably conformist education and Ivy League no-life-experience and religion issue.

Yeah. Diverse. Right.

Posted by: mj777nnnntgggg1 | May 27, 2009 2:04 PM | Report abuse

Except the SCOTUS is supposed to rule whether the decision before it is constitutional, not whether it's fair, or right, or justice or whether someones hurt goes unrectified. Simply is it in accord with the constitution.

Posted by: ronjaboy | May 27, 2009 2:16 PM | Report abuse

This nomination will not likely run into any major problems for one simple reason: Obama is replacing like with like. The next two most likely vacancies, Ginsburg and Stevens, will also involve replacing liberals with liberals. Obama is advancing on many fronts (health care, environment, education, security, budget, etc.) simultaneously. Republicans are hanging on by their fingernails (one Senate seat) in Congress--they don't have much ammunition, so they're likely going to husband it for real emergencies.

The Republicans will bide their time until one of two things happen:

1. They get another Republican president.

2. Kennedy, Thomas, or Scalia (the oldest conservatives on the court) leave. If Obama (or another Democrat) is still president when the time comes to replace one of those three, that's when the Republicans will try to go to war, providing there are enough left to mount an effective opposition.

We can only imagine the fun that will result from Obama nominating Hillary Clinton to replace Antonin Scalia.

Posted by: Gallenod | May 27, 2009 2:22 PM | Report abuse

@ ronjaboy: The ability to describe something in reductive terms doesn't make it a simple task.

Posted by: mobedda | May 27, 2009 2:46 PM | Report abuse

Obama is an artist. With palette in hand, his canvas the Supreme court, awaits a rainbow of diversity.

Can we say that ethnicity is a factor ? Socially, we can say ethnicity is a factor but legally, I doubt it. According to the Rule of Law, equal opportunity employment makes the ethnicity out of bounds.

Gonzeles had a chance to be a Clemente of Justice for the Latino community but I guess we all have short memories. I think Gonzeles claimed he was a "victim" of torture. I did not know he was interned at GITMO. So much for sending that one up to the majors.

And let's be fair, Latino Community is the largest growing community within the United States, I think. So why not have represent in da Supreme Court House, Yo Bronx, Yo Ricans.

I can't understand why on earth the "e pluribus unum" of the Senate is preparing for "battle". I guess that *"Those romantic young boys, all they ever want to do is fight".

Seriously and not deleriosly, the world is not white bread only.

*Lyrics by Bruce Springsteen, song entitled "Incident on 57th Street". You go Boss.

"Look out mama there's a white boat coming up the river..."

Posted by: markwpa | May 27, 2009 2:48 PM | Report abuse

"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"

This explains why Inhofe is a global warming denier. He just can't bear to hear people treat global warming as a looming threat, due to Inhofe's being unduely influenced because of his own personal identity as another major source of hot air.

Posted by: BigTimePatriot | May 27, 2009 3:41 PM | Report abuse

Diversity? There are 5 Catholics on the court. Sotomayor will make 6. Has there been any concern, not that it should that their faith will influence their rulings?

Posted by: MerrillFrank | May 27, 2009 3:50 PM | Report abuse

Once again... Frookin is putting on display his talent for idiotic thought.

Froomkin and Obama are focusing squarely on Diversity, for Diversity's sake. The question is... WHY??? Why does he pidgeon hole his choice to a nominee that checks off a couple diversity boxes on his presidential resume? How about choosing the person who best represents the need for the court, in Obama's opinion.

I would also like to point out that the press, including idiots like froomie harp on diversity as a requirement for the candidate and forsake any and all other needs for the court. In Froomkin's case, if the candidate is a dyed in the wool liberal, which she is, then Frooms will find a way to SPIN the nomination to look like a brilliant selection.

I don't know a whole lot about the justice, other than the media snipets that I have seen and heard, so I reserve full judgement until I know more about her.

But I am concerned with the reaction I have seen, and pose the following question: Isn't Justice supposed to be blind?? With all the propping up of Soto's backround and struggle (what struggle??? she went to the best law schools for her education) it is concerning that she will rule without being blind and not following the constructionalist intent of the founders of the country and the Constitution.

Posted by: alutz08 | May 27, 2009 4:26 PM | Report abuse

*Lyrics by Bruce Springsteen, song entitled "Incident on 57th Street". You go Boss.

"Look out mama there's a white boat coming up the river..."

And Springsteen is so cutting edge.


I've been listening to those old 80's chestnuts as of late, Bruce, U2, Elvis, from the grave (OK, I'm kidding about Elvis) and I've been watching Rambo trailers, thinking his character MUST have been based on the Beatles hero "Rocky Raccoon." Anyway, it occurred to me those 80's icons, along with the odious Madonna, don't really speak with the voice of the true poet, despite their larger than life projections -- something just rings false, tinny, brittle.

Clumsy, bombastic symbolism is all it is, in the end, we're not speaking Keats, here -- Springsteen is NOT Dylan, is NOT Woody Guthrie, and when did Bono morph into Fat Elvis, anyway?

It's reeks of affectation, doesn't it?

Whereas a guy like Dylan, say, is still pretty sharp, still the poet, artistically relevant, worth reading.

Why not the others?

Posted by: thegreatpotatospamof2003 | May 27, 2009 4:32 PM | Report abuse

Unexamined privilege. Dead on.

Posted by: JohninMpls | May 27, 2009 4:40 PM | Report abuse

It all started with Earl Warren and Brown v. Board of Education. Earl Warren was once a Republican governor of California.

Earl Warren started "legislating" from the bench. The constitution is a living document. Without Earl Warren, a white male, Obama would not be president and blacks would still be getting tested to vote.

We need a Latino on the court, and we now have one. But, alas, we have precious little diversity with like-minded grads from Harvard and Yale.

Posted by: alance | May 27, 2009 5:11 PM | Report abuse

Since Puerto Ricans are American citizens, isn't it redundant to describe someone as "Puerto Rican-American"?

Posted by: thompsmd | May 27, 2009 6:10 PM | Report abuse

Way to obfuscate, Froomkin. Sotomayor didn't say that her background let her make better decisions than "people" with similar backgrounds. She said that her background let her make decisions better than "white males." She singled out that group to contrast herself with.

The sum of your argument for diversity is evidently: "[B]ecause people from different backgrounds bring different perspectives to bear in the decisionmaking process. And that, the American tradition suggests, leads to better outcomes." Better? Better for whom? Certainly not better for white firefighters in New Haven, Conn.

Posted by: liam358 | May 27, 2009 6:17 PM | Report abuse

The "diversity" rationale attributed to Obama for selecting Sotamayor doesn't tell the whole story. The President has shown political cleverness in selecting a double minority - a woman and an Hispanic.

The Republican Party (particularly Carl Rove) during the Bush years, attempted to politically court Hispanic Americans realizing, that as a rapidly growing voter block, they could be brought into the fold as part of fulfilling the larger political strategy of creating a permanent Republican majority.

That idea died a hard death when conservative Republicans strongly repudiated former President Bush's attempts to reform immigrations laws. Congressional Republicans are now faced with a dilemma of their own creation. They can repudiate the "liberal diversity" of this nominee at the peril of totally alienating the voting block they once courted. Their continued insistence on playing to their static "loyal base" threatens to marginalize the party.

The "wake up call" alarm has yet to sound for many Republicans (or maybe the alarm has gone off, but many have chosen to push the "snooze" button).

President Obama has manipulated Republicans into a position where they have no choice but to tread cautiously in dealing with Sotamayor's nomination hearings.

Posted by: MillPond2 | May 27, 2009 6:33 PM | Report abuse

"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."

Only an idiot would presume this quote is racist. While most people have made the phrase "taken out of context" almost meaningless, this quote, indeed, cries out for that much-needed context from which it was removed. Thanks, Froomkin for providing it.

However, those who disparage Ms. Sotomayor will merely ignore the context, as it does not bolster their arguments.

Posted by: gsross | May 27, 2009 6:35 PM | Report abuse

I guess those of you who didn't take Constitutional Law sort of forgot that "separate but equal" was constitutional until fairly recently.

Care to explain that from your worldview that the Constitution cannot be interpreted different?

Also, what's up with blacks making up 3/5ths of a white. That's constitutional, right?

Also, how about those states that prohibited cunnilingus and fellatio in the household. There's no explicit privacy rights in the Constitution (and yet I'm quite sure conservatives like getting freaky in the sack as much as liberals).

Care now to give the lawyers here a lecture on how the Constitution is not a breathing document?

Posted by: bhuang2 | May 27, 2009 7:18 PM | Report abuse

Right on, bhuang2. Times change, perceptions change, norms change. I think it's positively stupid--as in, a dumb and thoughtless concept--that one can know the intent of the writers of the Constitution. We're separated by centuries, and by a culture which is far more complicated than that of the American colonies. Women and minorities weren't enfranchised when that document was written. It's a self-evident truth that one's experience helps determine his or her thinking, and that disadvantaged circumstances are a huge obstacle but can produce a more durable and sympathetic makeup in a person.

Those brave enough to think about it, I invite to consider the differences between Jesus and Paul. The one counseled mercy toward the woman caught in adultery. The other unconditionally condemned an adulteress, and demanded she be thrown out of the church.

Posted by: whizbang9a | May 27, 2009 9:03 PM | Report abuse

If diversity doesn't matter, why have more than 1 judge on the Supreme Court?

How else can one explain why 9 white males can have different opinions of a court case, how can there ever be a non-unanimous vote?

Those 5-4 votes indicate that life experiences already do produce different votes. Viva la difference.

Posted by: tjallen | May 27, 2009 9:43 PM | Report abuse

I'm beginning to think that "White House Watch" ought to be renamed "White House Adoring Gaze."

Dan Froomkin has read none of Judge Sotomayor's opinions and only snippets of one or two of her speeches. But although she went to the same schools as almost all the current members of the Court, had the same kind of legal training, a very similar legal career in the same region of the country, and even held the same job as every serving member of the Court held when nominated, she brings "much-needed diversity." Maybe this is because she is of Puerto Rican ancestry and a woman -- but on the White House Adoring Gaze blog, it may just be because President Obama says she does.

Posted by: jbritt3 | May 27, 2009 11:31 PM | Report abuse

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.

haha you say it like someone who be afraid to admit.

so here goes: the value of diversity is a sham and one of many stains on our meritocracy. i doubt the people even making the "value of diversity" argument believe it.

obviously, just because there is no intrinsic or practical value doesnt mean its a bad thing. its just a poor cover-up for what is, all too often, racial discrimination and racial politicking.

in this case, sotomayor is conventionally qualified for the position but i dont think anybody (liberal or conservative) doesnt think there is an element of racial calculation on obama's part.

fine, just dont add insult to injury by throwing absurdities like the value of "diversity"

its the voodoo economics of our age.

Posted by: dummypants | May 27, 2009 11:33 PM | Report abuse

ronjaboy claims, "Except the SCOTUS is supposed to rule whether the decision before it is constitutional, not whether it's fair, or right, or justice or whether someones hurt goes unrectified. Simply is it in accord with the constitution."

Actually that's not true.

Determining whether a certain law is constitutional (and striking it down if it isn't) is only one part of what the Supreme Court does. Just as often, it simply decides a CASE based on a complex weighing of the meaning and force of one aspect of the law (and/or the Constitution) vs. another aspect -- and whose claim (plaintiff vs. defendant, prosecutor vs. accused) seems to have more justice on its side.

The white males on the Supreme Court in the Dred Scott case could not see the point of view of the escaped slave -- to them he was not a human being with rights, but merely a piece of property. That led directly to the decision they handed down, namely that Dred Scott, as a stolen item of property, had to be returned to his "owner," in preservation of the "owner's" property rights. Result: what we now universally agree was an egregious injustice, since we have now learned to take seriously the viewpoint of a whole group of human beings who were previously regarded as basically just livestock.

Check out the history of Supreme Court decisions; you'll see this pattern over and over again. Discerning true justice absolutely involves being able to see the issue from the points of view of all parties. An open mind. The ability to walk in someone else's shoes. A wider variety of life experiences -- a fluency in more than one cultural milieu -- fosters such capacity.

Posted by: herzliebster | May 27, 2009 11:42 PM | Report abuse

herzliebster, there is no such thing as true or absolute justice. The concepts of justice and law are human inventions. Everything depends on context. The statements of the writers of the Constitution are now applied to situations they never imagined: with other races, including then-slaves, and women, in positions of power, with the ability to vote. In a world with interrelationships of a complexity, and operating at speeds, they could scarecly have believed. Racism, sexism and class warfare were concepts known to few.

My point is, it's impossible to see any situation, or argument, equally "from all sides". There are too many "sides". Experience, specifically of disadvantaged life, can help a person understand more than one perspective (or "side"). But no one can attain any kind of omniscience, no matter what their education or experience.

That said, I think Sotomayor will make a fine Justice. I think her experiences, like Obama, give her a fine sense of social justice. And those who call her an intellectual lightweight, are only speaking about themselves.

Posted by: whizbang9a | May 28, 2009 12:12 AM | Report abuse

Once again... Frookin is putting on display his talent for idiotic thought.


We like Dan around here, you knucklewalking blowhard

Posted by: chrisfox8 | May 28, 2009 1:41 PM | Report abuse

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