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.