radio and Fox News concerns Sotomayor having once said that she hoped her experiences, as a woman and Latina would help her render fairer decisions than white men might, specifically on cases about discrimination. To the ears of reactionaries, intent on ginning up the white grievance machine against President Obama, this comment amounted to a proclamation of supremacy on her part—a declaration that Latina judgment was inherently more sound than that of white men.
Of course, she meant no such thing. What Sotomayor was suggesting is that being a Latina, like anything else, informs one’s perceptions and interpretations of facts and the law, because it will have affected one’s experiences in life. There is nothing controversial about this statement. Indeed, it is one with which other justices have agreed, such as Sandra Day O’Connor, who said the same thing about being a woman in 1981. Likewise, Clarence Thomas claimed that his experience with poverty would make him more sensitive to the concerns of non-elites (not that it has, but he said it), and Samuel Alito suggested his family’s immigrant experience would help inform his opinions of immigration-related issues.
Her comment was simply a truism: Identity shapes experience, which then informs perceptions. Identity provides a lens through which one observes reality. It doesn’t mean that a person is suddenly incapable of rendering fair opinions on legal matters, having viewed a particular case through that prism. Still, it does mean that pure objectivity—the notion that a judge is a blank slate with no lens whatsoever—is a lie.
To make such a claim is not, as Newt Gingrich would have it, “new racism,” let alone equivalent to “the old racism,” as he also suggested. The old racism (which isn’t that old) was about the deliberate denying of opportunities to people of color. It was like the kind of racism practiced by the late Justice William Rehnquist (a favorite of Gingrich and his ilk), who, as a law clerk, penned a memo defending segregation and advocating it be maintained, and who, during his days as a GOP poll watcher, tried to keep black and brown folks from voting in Arizona. Again, nothing like what Sonia Sotomayor said or meant with her words.
Even more to the point—and this is what confirms the accuracy of Sotomayor’s comments—white male judges gave that old racism the cover of law. And why? Because of their personal biases, shaped by their identities as privileged group members who had the luxury of seeing nothing wrong with the social order from which they profited. The very fact that, for over 150 years, white men rendered one opinion after another dispensing with the rights of persons of color demonstrates the fundamental truth of what Judge Sotomayor was suggesting: namely, identity matters. How else could such esteemed jurists, render such horrific judgments as were handed down in Dred Scott or Plessy v. Ferguson? Is it not self-evident that had there been persons of color on the Court when those cases were argued, such Justices would have felt differently about the validity of separate but equal? Or the suggestion, rendered in Dred Scott, that blacks had no rights which the white man was bound to respect?
The simple truth is, we all have a lens. White men may not realize it, or we may consider that lens to be merely normal, in the sense that it is a generic, rational, human one, unsullied by our race or gender. But the luxury of believing such a thing is the hallmark of white privilege and white supremacist thinking. To universalize that which is particular to oneself is to suggest that persons like you are the very model of a human being, endowed with superior judgment, clarity, and objectivity relative to others, clouded as they are by their mere social identities.
But the law is not a fixed, exact thing, free from differing interpretations, which is why most Supreme Court opinions are mixed or split decisions, rather than unanimous, 9-0 renderings. Rational and fair-minded people, all of them legal scholars, can and do come to different conclusions about the same set of facts, the same precedents, and the same Constitution to which all are sworn. And when considering why two judges may look at the same facts and see different realities, race, gender, class, and other identity markers might be among the explanations. Not because there is something inherently different about whites or people of color, men or women, that leads them to different conclusions, but because our social location can influence what we see and don’t see.
It’s hard to imagine how anyone could argue with this rather banal observation. After all, according to surveys in the early 1960s, even before civil rights laws, two-thirds of whites said blacks had fully equal opportunities, and nearly 90 percent said that black children were treated equally in schools. In other words, most whites even then, at the height of the civil rights movement, saw no need for that movement. Surely this was not because whites were intrinsically cruel or incapable of sympathy in the face of human suffering. Instead, it must be because, as whites, they simply didn’t need to see the pain as real. They had the luxury of remaining oblivious to how their own racial supremacy adversely impacted the lived experiences of millions of their fellow countrymen and women. That whites could have been so deluded suggests that racial identity matters and that people of color are likely to bring a more profound understanding to these discussions, including legal deliberations, than most of us would. It is not that whites can’t get it. After all, white men in Brown ultimately overturned the evil deeds of other white men in Plessy. But the ability to see injustice is likely keener for those who have long been the targets of it.
Historically, one can see the role played by racial identity in the words of Supreme Court Justice Joseph Bradley when he voted to strike down post-emancipation civil rights protections in 1883. Bradley insisted that blacks had become the “special favorites of the law,” thanks to programs like the Freedman’s Bureau, and that the time had come for them to no longer benefit from this so-called preferential treatment. Instead, Bradley insisted, they should “take the place of mere citizens.” That he could say such a thing, ignoring that whites were not “mere citizens” but privileged ones—who had been the only legal citizens until just a few years before he rendered this judgment—is stunning confirmation of Sotomayor’s comments. Here was an otherwise competent jurist, making a fundamentally ridiculous argument, because as a white man, he had never had to consider his elevated status as anything but ordinary and natural.
And speaking of supposed “preferential treatment” and “reverse discrimination”—the bogeymen to which Justice Bradley gave voice just two decades after emancipation—these too have been raised by the right in its attack on Sotomayor. To many, her nomination is evidence of unjust affirmative action, by which they mean the promotion of less qualified people of color to positions they don’t deserve.
Paleo-bigot Pat Buchanan—who appeared twice on a radio show hosted by an overt white supremacist and close friend of David Duke—calls her an intellectual “lightweight.” This, coming from a man who, in a syndicated column, once praised the “genius” of Hitler. Fred Barnes not only claims Sotomayor has been a recipient of affirmative action, and may never have gotten into Princeton without it, but goes further. To Barnes, the fact that she graduated summa cum laude means nothing and might well have been the result of lenient grading, unlike George W. Bush’s “gentleman’s C,” about which the former president bragged a few years ago as though it were perfectly respectable.
That white people are so quick to presume preferential treatment is at work whenever someone who looks different from us makes it to the top is a hallmark of racist thinking. Too, it is based on the notion that when white men obtain such slots, it must have been merit-based rather than the result of a race or gender preference for us—even though the history of white male success has been almost entirely one of preferences given, favors done, and the receipt of unearned, unjustified advantage. Indeed, this is true even for white men who grew up in more modest conditions. To wit, the aforementioned Bill O’Reilly, who often ruminates about growing up lower-middle-class in Levittown, on Long Island, but forgets to mention that the community in which he grew up was racially restricted to whites, at the behest of the developer.
As it turns out, Sonia Sotomayor is likely to be confirmed, racism notwithstanding, and for that, we can be grateful. But let us remain aware of the strong undercurrent of bigotry that continues to poison our politics, and to
