Some people are unhappy to hear President Obama suggest that attributes like gender, ethnicity and "empathy" are critical in choosing a Supreme Court justice, and it's hard to blame them. When I hire a lawyer, I don't care about that person's ancestry, complexion, theological preoccupations, reproductive equipment or personal warmth -- I care about getting the best advice and representation.
Likewise for Supreme Court justices. Find me a tedious brainiac who reads the Constitution exactly as I read it, and I don't care if that person would fit in at the Chapman family reunion. Reducing a selection for a vitally important office to a demographic formula is not the path to sound constitutional interpretation.
Conservatives rightly lamented Sonia Sotomayor's suggestion that female Hispanic judges make better decisions than white males. At National Review Online, Kathryn Jean Lopez ridiculed the odd notion, raised by one commentator, that her diabetes would deepen her judicial wisdom.
This is not to deny the value of a diversity of backgrounds and experiences in an institution like the Supreme Court. We all understand the world through our personal environment, and the more exposure we have to other people's experiences and perspectives, the better off we are.
A daughter of Puerto Rican parents raised in a housing project may have insights into police abuses or the drug war or regulation of taxicabs that a white man who grew up middle-class in Indiana would not. The white guy, however, might also know some things she wouldn't.
But that is a long way from asserting, as Sotomayor has, 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." A wise Latina, like a wise WASP male, understands she has no monopoly on rich experiences or vital truths. She values what her life has offered without letting herself be constrained by it. If she's a judge, she recognizes her obligation to strive for impartiality.
So conservatives have reason to be wary of Sotomayor's approach to judging. But it's a little late for most of them to decry identity politics. Few objections were heard from Republicans in 1991, when President George H.W. Bush decided that the ideal person to fill the vacancy left by Thurgood Marshall, the court's first black justice, was Clarence Thomas, who just happened to be black as well.
Bush did his best to have it both ways. He insisted that race was irrelevant and that Thomas was simply the "best qualified" candidate in the country. But he also said, "(I)f credit accrues to him for coming up through a tough life as a minority in this country, so much the better."
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