Sonia Sotomayor and "identity politics"

Why is the "identity politics" card played so often by the Right when a non-white/non-male is nominated for something, or running for election as something? President Obama's Supreme Court nomination of federal appellate court judge Sonia Sotomayor has, with wearying inevitability, come under withering fire from the usual suspects. She is Hispanic; what's more, she has the temerity to believe that this allows her to bring a different perspective to the practice of law.

White males, it seems, are the only folks who lack ethnicity. Once merely the unmarked norm, we have now vaulted to the status of "post-racial." "He didn't pick a post-racial candidate," complained Abigail Thernstrom, described by Peter Baker in the New York Times as "a leading conservative scholar on race relations." "She is a reflection of Barack Obama's own racial identical [sic], his own bigotry. That's why she was chosen," says the Oxycontin-popping blowhard Rush Limbaugh. "[The] Latina woman racist should...withdraw," says the family-values guy, Newt Gingrich.

Anyone need a racism decoder ring?

Of all the justices of the Supreme Court of the United States, past and present, all but four have been white males--the folks blessed with no ethnicity, remember. Had Obama picked another one, would there be any talk of "identity politics?" Do that little thought-experiment. Just don't be long about it.

Combing through everything Sotomayor has uttered since Grade Two, the ravening Right managed to find this:

"I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

"Oooo! Racist!" shriek the--well, racists, for want of a better word.

I don't have much time myself for real identity politics, founded upon the metaphysical, essentialist notion of bounded ontological wholes--Blackness, Hispanicness, Frenchness, maleness, etc. Culture is fluid: "cultures" and genders are illusions when they are reified in this manner, and "race" is a category of practice, not a category of analysis. I don't see much essentialism in Sotomayor, though. Rather, her words convey the eminently practical idea that law, already subject to ceaseless interpretation under ever-changing circumstances, can benefit from a broader range of interpretation that better reflects the diverse make-up of the society governed by it.

Justice Thurgood Marshall put the matter plainly: "What do they know about Negroes? You can't name one member of this Court who knows anything about Negroes before he came to this Court. Name me one." His frustration was more than evident. Experience, we all assert, is a good thing, a necessary thing, the difference between a qualified practitioner and a tyro. Yet some quail at the notion that experience of discrimination--racism, sexism, homophobia--is an asset to those who might be called upon to make judgements in the area. Such experience on the bench, however, has already reaped dividends.

Some still imagine that the practice of law is almost divine in nature--that there is no humanity in it. Not only should it have no trace of subjectivity, but no context, either: good judges are detached, we are asked to believe, from the world in which they live and the one in which they grew up. They have privileged access to an objective realm of abstract reasoning that has nothing to do with flesh and blood--their own, or that of the lawyers who appear before them, or of those caught in the law's toils: the plaintiffs, the prosecutors, the defendants, the respondents.

Well, here is Sotomayor's entire speech. It's reassuringly commonsensical: different life experiences, she says, give us different ways of interpreting the world--and the law. A justice system should reflect some of that diversity of interpretation. I don't agree with everything in the lecture--the notion, if not embraced at least entertained, of "inherent...cultural differences" is anthropologically illiterate, and her infamous statement, even in context, is clumsily phrased--but my objections are mere quibbles.

Sotomayor was, after all, talking about discrimination, in society and within the legal profession. She provided facts and figures to buttress her case, and was clearly making the over-all point that, in judging cases involving discrimination, the point of view of someone in a racialized minority is to be welcomed, and carries its own lived authority.

That's not the essentialism of identity politics, but observation securely anchored in experience. What would we prefer, after all, in a judge with awesome power over others: abstract, other-worldly theorizing, or human-centred legal reasoning that breathes a vital spirit into the letter of the law?

Sotomayor is simply more honest, or at least more conscious, in offering us the latter. Because it's not really a choice, despite the way I just put it. We can't have the former, no matter how much we clamour for it. That approach is a pretence: underlying it we find yet more profoundly subjective interpretation, some of it, furthermore, not guided by experience but by prejudice.

Opening up the theatre of interpretation to different, experience-based perspectives is threatening only to those who fear that their own interpretations might be challenged. And challenged they will surely be. Let's hope, for the sake of a better, wiser, more inclusive justice, that Sotomayor is quickly confirmed.