Wanted: Equal Treatment, Not Identity Politics

Sabrina L. Schaeffer
|
Posted: Jun 02, 2009 3:31 PM
Wanted: Equal Treatment, Not Identity Politics

President Obama has laid out an ambitious domestic policy agenda, but his nomination of Sonia Sotomayor to the Supreme Court may be one of the most important actions of his presidency.

Any nomination to the Supreme Court is big news. After all, the position is for life, and the current ideological composition of the court means the new justice will have an enduring impact on public policy.

*** Special Offer ***

The nomination of Sotomayor, however, is more remarkable than most. She would be only the third woman to serve on the Court and the first Latina. It’s a significant symbol of achievement for the growing Hispanic population and therefore a savvy political move by Democrats, who have all but dared Republicans to attack her and are eager to lash out with claims of racism and sexism.

The media has mostly focused on Sotomayor's personal story. There is no doubt, Sotomayor’s rags-to-riches story of a young girl from public housing in the South Bronx who worked her way through Princeton and Yale Law School is undeniably commendable.

But the real question is whether she is among the most qualified individuals to replace retiring Justice David Souter. Sotomayor has drawn criticism from both the left and the right, suggesting that she may not have been the strongest candidate and that instead identity politics was a primary driver of Obama’s choice.

Law professors, former clerks, even respected left-leaning news outlets have all expressed concerns that Sotomayor is not the intellectual heavyweight they hoped Obama would have selected. What she has in legal experience – as a trial judge, appellate judge, and commercial litigator – she seems to lack in scholarly talent. While the left has not criticized Sotomayor’s decisions per se, they have acknowledged that it is unlikely she would serve as a vibrant liberal voice or be capable of building bipartisan coalitions.

And while the President and Sotomayor emphasized the importance of “empathy,” critics have acknowledged she can be a bully on the bench – a personality trait that makes many potential supporters concerned about her potential effectiveness as a justice, which tends to be a product of both intellectual prowess and personal charm.

Critics on the right are less concerned with Sotomayor’s temperament than they are with her apparent disregard for the text and intent of the Constitution and even Supreme Court precedent. While Obama stressed the importance of upholding the law and being empathetic, as a Justice one often cannot have it both ways.

Sotomayor’s comments about how her Latina background and her gender “may and will make a difference” in her judgments have also raised concerns on the right. As she said herself, “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 seems Sotomayor intends to rule on the basis of personal experience and perception of race and gender rather than on a disinterested and dispassionate examination of law.

A 2005 video in which Sotomayor claimed, “a court of appeals is where policy is made,” also suggests a need for further examination of her judicial philosophy and understanding of the judiciary's role. To what extent does Sotomayor believe that policy – especially social policy – ought to be determined by the courts? And to what extent does she plan to rely on her own background, rather than law and precedent, to determine her decisions?

Everyone’s personal experiences color their perspectives and worldviews, but Sotomayor’s statements suggest she is an adherent of the rule of (wo)man rather then the rule of law.

Regardless of one’s feelings toward President Obama, it’s safe to say his election marked a defining moment that demonstrated race is no insurmountable barrier in this country, no matter what the goal. What’s more, both presidential tickets featured women, and women hold some of the nation’s highest political offices, including Speaker of the House, Secretary of State, and Ambassador to the United Nations.

And yet the philosophy and the game of identity politics show no sign of ending.

It’s heartening to see women compete with men in all professional arenas, but it should not be our central concern – especially for nominations of such import as the Supreme Court. It does a disservice to the country to overlook other potential candidates, and it’s offensive to women who wish to be treated (and evaluated) as equals and not as a victim class in need of government protection.

Sotomayor may have been given preferential treatment because she’s a Latina woman. Let’s hope that if she becomes a Justice she doesn’t do the same.