Unless Judge Sonia Sotomayor commits a monstrous gaffe during her final hours of grilling as President Barack Obama’s first Supreme Court nominee, she will replace retiring Justice David Souter when the next court session begins.
Clearly, it won’t be until she’s had some cases under her belt that we'll know if the concerns raised during her hearings had merit. So, let’s look at those concerns and figure out how important they are to her performance as a high court associate justice.
There’s her now famous “Wise Latina” remark which has caused consternation among the Republican members of the Senate Judiciary Committee. There’s her decision in the Ricci v. DeStefano discrimination case to side with the city when it threw out test results that favored white firefighters. That decision was overturned by the current Supreme Court. Those same committee members worry about what bias might have colored her judgment in that ruling.
And there’s her long pro bono service on the board of the Puerto Rican Legal Defense and Education Fund, a mainstream Hispanic rights group which was targeted by Alabama Senator Jeff Sessions as adopting extreme positions on affirmative action. Sessions is the ranking Republican on the Senate Judiciary Committee who, 23 years ago, was denied a federal judgeship by the same committee over charges of racism.
In each instance, it is Sotomayor’s identity as a woman of Puerto Rican extraction with humble, working class roots that is implicit in the reluctance in some sectors to see her on that prestigious bench. This is identity politics at work! The worry among her detractors is that her service on the court will reflect her background, who she is, and thus her identity. And further, since she was born a female of poor Puerto Rican parents, her decisions as a jurist now and in the future have and will be shaped and politicized by those roots. That again is identity politics.
But if we take this phrase, which for many is pejorative, and apply it to Chief Justice John Roberts, we find that as a white male, his identity -- which like Sotomayor’s, was formed by his life experience, gender, class, and race -- also might color his rulings. The difference is that while she might be looking for change to accommodate a politically and socially evolving world, he and many of his colleagues on the high court might be vested in working on behalf of the status quo.
So if voting or any decision-making is determined by the influence of one’s gender, class or race, and what will enhance the future of that distinct subgroup, identity politics could be the one shared engine driving the Supreme Court.
