Sotomayor Confirmation Fight as Vehicle for Discussion of Race, Class, Gender and Privilege

Between the Wall Street Journal telling us that business groups are confident that President Obama's Supreme Court nominees won't rock the boat and the New York Times telling us that Obama shunned so-called "favorites of the Left" in his Supreme Court search, I'm not (yet) fully confident that the selection of Sonia Sotomayor will mean huge policy change from the court. However, I am increasingly confident (and happy) that the Sotomayor nomination and ensuing confirmation fight could open up a much-needed discussion of taboo subjects like race, class, gender and privilege.

Sotomayor has been extremely outspoken on these topics. Indeed, her 2001 speech entitled "A Latina Judge's Voice" seemed deliberately (and, IMHO, courageously) provocative:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases...I am not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Obama has spent much of his time in politics carefully avoiding or downplaying the issue of race, class and privilege. You can't fault him for that: Much of his relative reticence has to do with the unfortunate fact that black politicians who talk about such issues are automatically slandered as unserious race-centric rabble rousers (see Joe Klein's flippant denigration of John Conyers for a perfect example of this systemic racism in our media). Put another way, in order for Obama to achieve the credibility he has achieved, he has had to play by the Establishment media's rules on issues like race, class and privilege.

However, the nomination of Sotomayor suggests that Obama is willing -- and, perhaps, eager -- to start a discussion of these issues that he cautiously kicked off in his fantastic campaign speech on race.

He obviously knows that conservatives will try to derail Sotomayor's confirmation fight by specifically focusing on her provocative comments on race, class, gender and privilege. They will try to portray themselves -- and America -- as a color-blind, classless society of gender equality, with Sotomayor's undeniably true comments as supposed "proof" that she is a radical.

Of course, Sotomayor is absolutely right on these issues. People's experience, gender, heritage, ethnicity and economic station impact how they look at the world (I mean, if you don't think John Roberts' status as a wealthy white male of extreme privilege doesn't impact his rulings, then I've got some real estate to sell you). Thus, our court system (and entire political system) needs more diversity -- and Sotomayor represents more diversity. And because her confirmation fight will likely pivot on discussions of her statements on race, class, gender and privilege, it means those issues -- usually shoved to the side -- will be on the national stage.

That's a damn good thing, if you ask me -- it's about time we stop pretending we live in a color-blind, classless utopia of gender equality. We don't -- and the sooner we admit that, the sooner we can actually move towards that utopian vision in the future.

Note: We discussed the potential value of the Sotomayor nomination fight to the broader cause of fighting racism, classism, gender persecution and systemic privilege on KKZN AM760 yesterday. You can listen here.

Comments

[Abby L. Ferber - Huffpost Blogger]

Yes, I agree! We must expand the dialogue and keep these issues at the forefront. Issues such as systemic racism in the media should be under investigation and in the public eye, and not take cases like this to open people's eyes to this reality. I have expanded on some of these issues on my own blog and welcome comments and input:

http://www.huffingtonpost.com/abby-ferber/sotomayor-racist_b_208639.html

[jmpurser]

Thank you for quoting Judge Sotomayor's comments in context. When I heard the soundbite I wondered what the topic was. In context it makes even more sense.

However one of your remarks about President Obama:
"Put another way, in order for Obama to achieve the credibility he has achieved, he has had to play by the Establishment media's rules on issues like race, class and privilege."

caused me to wince. Yes, he's gotten awfully good at that hasn't he? Almost like he's not playing at all...

[capitalismisntamoral]

I don't think this should surprise you at all. Anyone in politics, regardless of intentions, is part of the political system.

Sotomayor and Obama took advantage of their opportunities, went to the best schools, developed their talents, and they have become remarkably successful, within the system.

It's difficult, if not impossible to be a rebel, an outsider, when working within the system.
I guess this is why Obama says he listens to Jay Z and not KRS-ONE.

It's also hard to imagine not being changed by the constraints the existing power structure and its dominant beliefs and values ($$$).

Gotta keep reminding them who they REALLY work for!

[h0tr0d]

The problem is, she didn't say she would reach a different conclusion, she said she, in her richness of experience, would reach "a better conclusion than a white male who hasn't lived that life." That's a statement that has no reconciliation.

[jmpurser]

Except she didn't say that.

[ProgressiveVoice]

She did say that, it's in the quote reprinted in the blog.

hotrod - that caused me to pause as well - or should I say I "tripped" over that? Better? How does she know? What exactly is a "better" judicial decision?

However, I wouldn't say she's any less a good candidate for the SCOTUS because of that one word out of approximately 250 reprinted.

[h0tr0d]

Except that's what is excerpted above.

[siellis]

Agree

[siellis]

The only way you can be absolutely sure not to be accused of an affirmative-action pick is to choose white males to all positions of leadership. Clearly they are the only ones truely qualified to lead. Any body else is fulfilling a quota. It doesn't matter how hard minorities have studied and work. They were working hard against all odds not to acheive but to fill a quota. Because any one can see that any time white men are not choosen they are the victims of reverse discrimination. Poor white guys - how will they ever succeed with all of these quota systems bringing them down?

[h0tr0d]

Obama proves your statement is hot air.

[capitalismisntamoral]

I think you need to bone up on your satire detection.

[FairTalk]

If Sotomayor is an affirmative action choice, does that mean that Bush was a legasy choice?

[VictoriaP]

of course not. all of these "i don't believe in equality under the law unless white men appear to be disadvantaged" whiners only play with one sided coins. a logical correlary never exists in their universe.

[Dale07]

I think background is an influence on a Judges decisions. That's why I am curious as to her stance on abortion. She's a Catholic, Hispanic woman... taught in Catholic Schools..... if the question of abortion should come up during her conformation, she wouldn't give an up or down. Be careful in what you ask for, she might not be all you hope or expect.

[sepiasiren]

Anyone who thinks ANY judges background will not influence how they look at a case is suffering from serious delusion. A white male is not apt to see a case that deals with women's rights the same way a woman would. Judges are human and will be able to identify with certain issues personally. There is also the idea that one should temper justice with mercy. Following the rule of law is important. At the same time, we have been admonished to temper justice with mercy. This is why we have aggravating and mitigating factors on the law books. If gives Judges room to impose sentences based on individual situations. For instance, a poor, starving woman who steals baby food for a dying baby should not get the same sentences as a armed robber. A blind rule of law would.

Justice is not rigid and a judge shouldn't be either.

Besides, all these supposed Christian conservatives are forgetting that the most beloved and wise judges and kings in the bible were both intelligent, studied and merciful--they had empathy.

[DallasMike]

It is not a judges job to look at the back ground of the case that is before them, their job is to apply the rule of law as stated in the Constitution. Remember JUSTICE IS BLIND that is why she wears a blind fold.

[Osmona]

Yep, justice is "supposed" to be blind. In some cases, its sees in living "color".

[cdub1991]

Justice is blind with respect to outcome, not blind with respect to the relevant facts. Where do we get this notion that judges can only be good if they are oblivious to the world? That is not what blind justice means.

[jmpurser]

If that were true we could replace Judges with an english teacher. Perhaps even a word processor.

[mjc]

Certainly has to be the case that she will bring a lot more diversity to the Court but don't think this is some slam-dunk toward a LIBERAL Court by any means. She'll still have to prove herself to the stalwarts, Scalia and Roberts, even if she agrees with any of the decisions that are made. But thank God that a Democrat is sitting in the WH because this may be the best decision Obama makes for our nation.

[vinny]

openly stating that her identity as a latina will influence her judgment is more akin to socialism (progressive communitarianism) than liberalism....

[cdub1991]

That comment makes no sense whatsoever.

[noudidnt]

Sam Alito said the same thing during his confirmation process. Nice try though.

www.mediamatters.org

[mjc]

You must be replying to some issue in your own mind. There is nothing in my short post that refers to her as a "latina" and no way that "liberalism"...your term, can be equated with socialism, progressive communitar­ianism....­whatever the hell that means.

[Cogitoe]

I could not disagree more. Democrats will certainly spin any debate in that direction, but all polls clearly show a large majority of Americans from both sides of the aisle wanted a woman and were in agreement with the idea of having Hispanic representation. Gender and ethnicty are not the real issues and they should not trump more important factors like judicial philosophy. Don't forget that the Democrats blocked a Hispanic appointment by Bush becuase he was deemed too conservative.

[vinny]

wow, open admission that identity politics will be a factor in her judgment...

[DallasMike]

If you were having open heart surgery would you want the doctor that is there because of their gender and race or do you want the best doctor available.

[capitalismisntamoral]

Bink! your straw man is knocked over.

A surgeon is 1 individual. In this case, she will be 1 of 9.

So, her different ethnic, gender, and economic background IS important;
some would say it's an essential characteristic. That is, if the goal is
to achieve the fairest court possible.

If your goal is to preserve the status quo, however ... not so much.

[thefirehorse]

Right On. Thanks for posting the full text of Sotomayor's 2001 speech. Lets hope that a national conversation on these topics will take place.

Now can someone please tell me what the heck Reverse Discrimination really is? And I don't mean some made-up extrapolation of terms. Or are we just talking about discrimination, but have to give it a new name because it pertains just to whites and Asians.

[progressiveblkgrl]

I am so glad that someone else is confused by that term. Discrimination is the same whether it comes from a White person or a Purple person. Also, since when are Asians in the majority? They're a minority just like the rest of us.

[EmeraldWorld]

Great article. And Judge Sotomayor is absolutely right- one's own experiences will limit, in some cases even negate, their ability to understand another person's experiences.

[VictoriaP]

HuffPost's Pick

When will every decision made by a white person assumed to be influenced by his or her whiteness? When will whites be automatically, publicly and critically assessed by the MSM through the lens of white privilege and their underlying inherent motivation to do that which is to the benefit of whites, while detrimental to people of color?

The white ruling class, as usual, can't suppress their racist beliefs and cowardly need to cast people of color as less or not qualified. While I am not wild about the selection of Ms. Sotamayor for SCOTUS, I cannot accept that her accomplishments are being diminished to such an extent, when white males of questionable intellect, such as Chief Justice Roberts and former pres. Bush were/are given a pass.

In contrast to Ms. Sotamayor, Bush was POTUS and clearly limited in his capacity to grasp basic concepts, despite having available to him the very best tutors, teachers, instructors, and educational opportunities that money could buy; yet, he was allowed to wear his intellectual mediocrity as a badge of honor, alongside his hubris.

A privileged white person has no idea as to the intellect and strength of character that it takes to persevere and break free from the claws of America’s dark side, its pungent poverty and racist scourge to accomplish that which has been achieved by President and Mrs. Obama or Ms. Sotamayor and others like them who remain unsung.

[thefirehorse]

I tend to agree with many of your statements, but you should keep it simple so many of those same people you are talking about will be able to understand what you are talking about. Remember they've been so disadvantaged.

[noudidnt]

i JUST FLAGGED YOU AS A FAVORITE!

[Cogitoe]

That Ms. Sotamayor is very intelligent and highly accomplished can not be denied. Anyone would be a fool to take such a position. It is also a strong desire of a great number of Americans, like myself, to have more diverse representation on the Supreme Court to reward talented people of all types and to show our society as a truer meritocracy. None of these considerations, however, mean a candidates empathy or "life experiences" should be the determining factor for their selection. To be fair, the law should remain blind to gender or ethnicity.

[VictoriaP]

What you and others like you do not understand is that the "white life experience" is a given and such the historical, cultural norm in every single aspect of life that it is accepted as the bar by which all of us are consistently measured. This heated debate of Ms. Sotamoyor's background and qualifications is exactly proof of the existence of that which you can't/won't acknowledge.

I don't claim to know whether Ms. Satomoyor's ethnicity or life experience is THE reason that she was selected by the President and neither do you. My guess is that these things may have been NECESSARY BUT NOT SUFFICIENT aspects of the decision.

[sepiasiren]

Justice should be tempered with mercy--that requires empathy.

[cdub1991]

"Determining factor?" Who said anything about determining factor? It is A factor in the selection process, not the sole factor and not even the most important.

[progressiveblkgrl]

Amen!

[Osmona]

Yesterday on MSNBC, Pat Buchanan said Judge Sotomayor was an "affirmative action" choice. Here's a woman who went to Harvard or Yale and Princeton and graduated at the top of her class. And Buchanan had the nerve to call her an "affirmative action" choice. That's double racism because he said this because one: President Obama picked her and two: she's Hispanic so she must have gotten through school on affirmative action.

The remarks I heard about this woman is disgraceful to put it mildly.

[capitalismisntamoral]

And yet, none of these (disgraceful) comments are the least bit surprising or unexpected.