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The Conservative Curmudgeon
June 23, 2009

The Sotomayor Nomination: Last Gasp for Identity Politics?
by Allan C. Brownfeld

ALEXANDRIA, VA — When Judge Sonia Sotomayor was nominated for a position on the U.S. Supreme Court, newspapers across the country — including The Washington Post and The New York Times — did not even put her name in the headline, proclaiming instead, “Hispanic Woman Named to Supreme Court.” She was viewed, not as an individual with particular merits and demerits, but as a representative of an entire group of people. This, of course, is the essence of what has come to be known as “identity politics.”

Identity politics is hardly confined to the Sotomayor nomination. Consider the case of Senator Rolan Burris (D-IL). Writing in The Politico, Roger Simon provides this analysis: “You can see why Democrats are nervous. Roland Burris, a political hack, muscled his way into the U.S. Senate by nakedly playing the race card, and now everybody is jumpy about any comments that seem to indicate that one race should be favored over another.... Burris, whose main claim to fame was that in l6 years of holding office in Illinois he had not been indicted even once, was appointed to the U.S. Senate by Illinois Governor Rod Blagojevich, who a few weeks earlier had been led away in handcuffs for trying to sell that Senate seat.”

Initially, the White House and the Democratic leadership of the Senate wanted to delay Burris’ appointment until Blagojevich was impeached so that the new, untainted governor could fill the seat. But Burris' team quickly played the race card. Rep. Bobby Rush (D-IL) dared the Senate to deny a black man the seat that had been held by Barack Obama. “There are no African-Americans in the Senate, and I don't think that anyone, any U.S. senator who is sitting right now, would want to go on record to deny one African-American from being seated in the U.S. Senate,” Rush said. “I don’t think they want to go on record doing that.”

When Burris stood outside the Senate in the rain after being rebuffed from taking his seat on January 6, Rush went on “Hardball with Chris Matthews” and said, “It reminded me of the dogs being sicced on children in Birmingham, Alabama. That’s what it reminded me of.” After that, opposition to the quick seating of Burris collapsed.

According to Roger Simon, “All has not gone well.... The transcript of a secretly recorded phone call between Burris and the brother of Blagojevich was released in federal court. In the phone call, Burris offers to write a check to the Rod Blagojevich campaign and says, ‘I'm very much interested in, in trying to replace Obama. OK.’ The Senate Ethics Committee is looking into all of this, but some senators are now nervous and angry. They folded in the face of the race card when it came to Burris, but some are now aflame over what they see as Sonia Sotomayor’s playing the same race card.”

Senator John Cornyn (R-TX), a member of the Judiciary Committee, said, “We need to know whether she’s going to be a justice for all of us or just a justice for a few of us.” Senator Jeff Sessions (R-AL), the ranking Republican on the Judiciary Committee, said of Sotomayor, “I think that she is a person who believes that her background can influence her decision. That’s what troubles me.”

Many critics of Sotomayor’s nomination cite a speech she gave at the University of California at Berkeley in 200l in which she said, “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.”

The fact is, however, that this speech was not atypical for Judge Sotomayor. The Washington Post reported that, “President Obama has said that she regretted the wording in hindsight, but the speeches released... suggest that while she had not used the precise words before, the sentiments behind the remark were hardly isolated. In a l999 speech to the Women’s Bar Association of New York State, Sotomayor invoked ‘sister power,’ called for the selection of a third woman Supreme Court Justice — which she would now be — and used phrasing similar to that in the Berkeley speech. ‘I would hope that a wise woman with the richness of her experiences would, more often than not, reach a better conclusion,’ she said.”

In an address published in the Berkeley: La Raza Law Journal, which titled the symposium “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation,” she pointedly rejected the ideal “that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity, based on the reason of law,” calling that a mere “aspiration” not achievable “in most cases.”

Judge Sotomayor's apparent obsession with racial and ethnic identity politics has not been taken out of context — it is the context. In her 200l Berkeley address, she talked about her “Latina soul,” and her “Latina voice,” and her “Latina identity” over and over. She ended with the statement that she is “a Latina voice on the bench.” What, one wonders, is a Latina voice — or an Irish voice or an Italian voice? Justice, she seems to forget, wears a blindfold. She seems to want to transform it into some kind of tribal symbol.

In some ways, Judge Sotomayor’s stress on racial and ethnic identity flies in the face of President Obama’s goal of transcending such notions. New York Times columnist David Brooks points out that, “It's interesting to compare Sotomayor’s thinking with Barack Obama’s. On the grand matters of race in America, they are quite different. Sotomayor has given a series of speeches arguing that it is not possible or even desirable to transcend our racial or gender sympathies and prejudices. During the presidential campaign, Obama gave a speech in Philadelphia arguing for precisely that, calling on America to move beyond the old categories and arguments. Sotomayor sometimes draws a straight line between ethnicity, gender, and behavior. Obama emphasizes our multiple identities and the complex blend of influences on an individual life.”

Many men and women of good will thought that we had moved beyond identity politics, particularly with the election of our first African-American president. This, however, does not yet quite seem to be the case. The history of Supreme Court appointments is instructive. In l836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the court; this initiated a tradition that was carried forward intermittently for more than a century, with Edward White, Joseph McKenna, Pierce Butler, Frank Murphy, and William J. Brennan, Jr. occupying the chair. In l9l6, Woodrow Wilson nominated Louis D. Brandeis, establishing the Jewish seat, which later went, with brief overlapping periods, to Benjamin N. Cardozo, Felix Frankfurter, and Abe Fortas. In our own era, we have seen women and African-Americans appointed to the court.

Jeffrey Toobin, a close observer of the Supreme Court, points out that, “By the time Bill Clinton named Ruth Bader Ginsburg and Stephen G. Breyer to the Court, the fact that both are Jewish (and replaced non-Jewish predecessors) was little more than a curiosity. If Sotomayor is confirmed, there will be six Catholics on the Court, which is also of minor significance. George W. Bush appointed John G. Roberts, Jr., and Samuel A. Alito, Jr., because they are conservative, not because they are Catholic. (The Catholic Brennan was the Court’s greatest liberal).”

Sonia Sotomayor’s nomination seems to be a throwback to the identity politics that most Americans thought we had moved beyond. Let us hope that this is the last gasp for such a notion and that in the future men and women will be judged on their individual abilities — not on the basis of race, gender, religion, or ethnicity.

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The Conservative Curmudgeon is copyright © 2009 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.

Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.

He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.

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