The XX Factor

Enough Already About Sotomayor and Identity Politics

A guest post from Yale law professor Heather Gerken :

Over the last day, I’ve been fielding calls from reporters, members of your tribe, many of whom have asked some variation on the following questions: “What role does identity politics play on the Supreme Court, and should those who support civil-rights causes be happy about Judge Sotomayor’s nomination?” (This, for what it’s worth, is almost a direct quote).

There is only one sensible answer to such questions. Please stop. Honestly. It’s embarrassing even to have to say this, but let me spell it out.

These aren’t just the wrong questions; they are silly questions. They begin with the premise, already evident in commentary, that someone who is a woman (or a Latino or from a working-class background) somehow has an “identity,” whereas the other recent nominees to the court mysteriously do not. If you think Judge Sotomayor’s nomination raises questions of “identity politics,” then you should ask yourself what exactly you think is so neutral about the politics of prior nominees.

You might insist that President Obama - and Judge Sotomayor herself - have put her identity at issue, so it’s fair game. But that leads me to the second reason to resist the question. It is one thing to say that all of the justices bring their own histories and experiences to the courtroom. It’s quite another to insist that one’s background gets witlessly translated into votes on specific issues. Surely that’s not a hard distinction to figure out. After all, the whole point of judging is to leverage what one knows about the world and to compensate for what one doesn’t know. It’s exceedingly hard to do it, and judges don’t always succeed. But if we think there’s no possibility that judges will at least try to step out of the bounds of their experiences, it’s not entirely clear why we have courts in the first place. It must be possible to say that Judge Sotomayor - who presumably has had some experience with discrimination, some sense of the dilemmas faced by people without means - might help enrich the justices’ deliberations without assuming that her identity will translate into specific kinds of votes.

I have faith in the possibility that judges can move beyond their histories because I worked for the man whom Judge Sotomayor has been nominated to replace: David Souter. Justice Souter was one of the remarkable judges who consistently looked beyond himself for answers to the questions the court was asked to resolve. Consider his voting-rights jurisprudence. Souter was perhaps the least politically connected person on the court, and he came from a racially homogenous home state with little experience with the Voting Rights Act. Yet Souter ended up carving out a position on the relationship between race and voting that was more nuanced and more pragmatic than his brethren’s. It’s what made him a great justice, and there’s no reason to think that Judge Sotomayor won’t become one as well.