She’s just so mainstream

A curious thing happened on the way to the now-seemingly inevitable confirmation of Sonia Sotomayor, Barack Obama’s first nominee to the U.S. Supreme Court. The nominee herself was transformed.

Sotomayor, a long-time appellate judge of Puerto Rican descent, who rose from a Bronx housing project to graduate summa cum laude from Princeton, had for years presented herself as a different breed of female judge than, say, the only two women who have thus far made it to the top court. When those trail-blazers, Sandra Day O’Connor and Ruth Bader Ginsburg, graduated from law school in the 1950s, they had to justify why they were taking the place of a male student. O’Connor graduated third in her class at Stanford Law School, but the only job offered to her at the time was as a legal secretary. Every step of the way, Ginsburg and O’Connor were at pains to prove their equality. A favourite saying of theirs was that a wise old woman and a wise old man would reach the same conclusion when deciding cases.

But Sotomayor, who graduated from Yale Law School in 1979 and became a federal judge in 1992, took a more contemporary, even postmodern, view of gender and ethnicity that went beyond mere equality. In a 2001 lecture at the University of California at Berkeley, on the need for more diversity in terms of women and minorities on the bench, she argued that there is often no objective right answer to legal questions, and so judges’ personal experiences will influence the outcomes they reach. And in a comment that has since come to haunt her, but which she repeated in several speeches to legal audiences, Sotomayor turned O’Connor and Ginsburg’s aphorism on its head, saying: “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.”

The reaction in conservative circles was predictable. Rush Limbaugh called her a racist. So did Newt Gingrich. During her confirmation hearings, one Republican senator after another dwelled on the comment, as well as other statements such as this one she made in the speech: “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague, Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.” On another occasion she had said, “I wonder whether achieving the goal of impartiality is possible at all in even most cases, and I wonder whether by ignoring our differences as women, men or people of colour we do a disservice to both the law and society.”

But despite relentless questioning on the subject at her confirmation hearing, Sotomayor did not explain how gender or ethnicity could affect judging. In fact, contrary to her earlier speeches, she denied that it did. She said that she had just been trying to inspire audiences of young minority lawyers and law students, and that her repeated challenges to the O’Connor-Ginsburg mantra had been nothing more than a “rhetorical flourish” that “fell flat.” Judges, she now insisted in a dramatic break from the sophisticated notion that the law is sometimes indeterminate, simply apply the law to the facts.

It was, as far as the confirmation process goes, the prudent course to take. There is a narrow range of acceptable comments for judges to make: as now Chief Justice John Roberts put it during his Senate confirmation hearings, “judges are like umpires” simply calling balls and strikes. Outside the televised hearings room, in law schools around the country, however, the nature of judging is seen as more complex, and the role of gender and ethnic diversity viewed as valuable for more than mere symbolism.

But Sotomayor, who would be the first Hispanic, and only the third woman, appointed to the United States Supreme Court, and is the very embodiment of the movement for diversity, turned her back on all that. “What life experiences brings to the process . . . it helps you listen and understand. It doesn’t change what the law is or what the law commands,” she said. “I do not believe that any ethnic, racial or gender group has an advantage in sound judging,” she said.

Democratic senators on the judiciary committee tried hard to demonstrate that her 17-year-record as a judge was squarely mainstream, and untainted by ethnic or gender bias. The committee chairman, Patrick Leahy of Vermont, pointed to a study showing that out of the 97 race-related cases that Judge Sotomayor participated in as an appellate judge, she had rejected discrimination claims in 80 of them. New York Democrat Charles Schumer cited another study showing that in the nearly 850 asylum cases she dealt with, Sotomayor ruled in favour of the government, and against the immigrant seeking asylum, 83 per cent of the time.

Senators were pleased and “reassured” by her disavowal of her “wise Latina” persona, and political pundits pronounced her hearings a great success. But people who had spent years building the intellectual case for a diverse judiciary were stunned by the simplistic view of judging she portrayed to the nation. Midway through the hearings, Georgetown University law professor Louis Michael Seidman pronounced himself “completely disgusted” by her testimony. “If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court,” he wrote on the blog of the Federalist Society, a legal organization.

The hearings were “really unfortunate,” Seidman later told Maclean’s, because of the “fairy tale” view of judging she endorsed. “A lot of constitutional law turns on deeply held, sometimes unconscious assumptions about how the world works—and having people on the court with different views about how the world works is likely to result in wiser decisions,” he said. “I think one of the saddest things is that there was space for her to say something different. Democrats have 60 votes in the Senate. They could have confirmed her had she been a lot more honest.”