Update: George Lakoff, on May 30th, wrote a terrific analysis of what's at stake for progressives in the Sotomayor nomination -- describing how empathy is code for arbitrary, or even, racist. The diary below does just as he recommended: using humanizing themes as an offensive strategy:
With the hearings now in view, those critical of President Obama’s first Supreme Court nominee have a clear strategy. They evidently intend to challenge the qualifications of Judge Sonia Sotomayor on all of the familiar grounds – and then some: including for judicial activism, liberal ideology, even excessive feeling. Those watching the battle could take some comfort that while outlandish charges regarding her alleged "racism" surfaced over the past few weeks, these and other utterly baseless claims seemed at least to fall outside the Republican Party’s official attack regimen.
But it does seem fair to ask whether the claims by more mainstream leaders on the right bear any resemblance to these more outrageous allegations. One recent indication: on Meet the Press, the ranking Republican on the Senate Judiciary Committee Jeff Sessions (R-AL) said that what he found most "troubling" about Judge Sotomayor’s nomination is the likelihood of her bias in favor of Latinas, people of color, and the underprivileged. "Empathy for specific groups," he admonished, "goes against the heart of the great American heritage of an independent judge."
While it would hard to object to Senator Sessions’ general sentiment, it is also sadly true that his warning is little more than a barely subtler charge of racism. Of course, bias of any sort is a problem for a judge, but Sessions’ assumption that Judge Sotomayor will favor her own narrow self-interests reflects, at best, ignorance of her record. In the speech that is raising such a flap, Judge Sotomayor was simply acknowledging a fundamental truth about judging – that it is not done by machines, but by human beings, with their particular biographies.
This simple truth, however, is worlds away from the notion that any judge would disregard the law, including precedent, statutes and the Constitution, and decide cases instead based on a narrow and self-serving form of preference for certain types of plaintiffs. Indeed, actual text of her speech, she makes clear that there is no universal female or Latina voice, and humbly offers that there will be areas in which she, too, will lack informative experiences.
As many analysts and commentators have already recognized, Judge Sotomayor’s record on the federal appeals court shows rather unambiguously that she is open-minded on questions of race and racial discrimination. An analysis by SCOTUS Blog revealed that in 96 cases involving race, Judge Sotomayor and the panel rejected the claim of discrimination 78 times and agreed with the claim of discrimination 10 times. In more than 100 panel discussions on race in which she participated on the appellate bench, Judge Sotomayor’s views rarely diverged from those of her colleagues; she disagreed only 4 times, hardly the profile of a radical. Moreover, her rulings in cases like Pappas v. Giuliani have shown her to be admirably principled and fair-minded even in the face of obvious racism by a plaintiff.
There thus remains something unsavory about the questions raised by Senator Sessions. The insinuation is clearly that because she is Latina, Judge Sotomayor sees things first and foremost as a Hispanic and only later – as a kind of afterthought – as a human being capable of thinking beyond the confines of class, race, and upbringing. Just how receptive would Sessions or others be to concerns that people of color in the Court have been faced with for years; namely, whether or not a white Justice would be inclined to favor white plaintiffs at their expense?
Last Sunday an article in The New York Times compared the lives and experiences of Judge Sotomayor and the Supreme Court’s only other minority justice, Clarence Thomas. While the piece emphasized their differences on, among other things, affirmative action, the pairing may furnish another useful parallel. At a 1998 speech at the annual meeting of the National Bar Association, the largest organization of black lawyers in the U.S., Justice Thomas spoke plainly about the regular, casual attacks on his dignity. "Some go so far as to all but define each of us [black people] by our race and establish the range of our thinking and our opinions not by our deeds but by our color. I see this in much the same way I saw our denial of rights – as nothing short of a denial of our humanity." Justice Thomas actually has a point.
Judge Sotomayor is the latest, but certainly not the last, person of color to confront such willful misunderstanding. Perhaps the most disconcerting part of Sen. Sessions’ comments last week – and their continuing power as talking points – is that they represent the flip side of the Gingrich-Limbaugh coin. Those two fulminate that Sotomayor is anti-white – a patent absurdity. This past Sunday on Face the Nation, Gingrich offered a paltry qualification of his previous comments: that he had only meant Judge Sotomayor’s words were racist, not that she was.
Whether an allegation parsing a speech or assaulting a person, these claims are troubling. It is more than troubling, in fact, when a bona fide member of the conservative political establishment openly questions, with no evidence to behind it, whether Judge Sotomayor is capable of thinking beyond the boundaries of racial definitions merely because she acknowledges, in a way that white men rarely are compelled to do, that "the richness" of personal experience informs judgment, and may even make us "wise." Those who care about fairness in the courts should also care deeply about the integrity of the process that will confirm a Supreme Court justice.
What these moments over the past few weeks have had in common, whether scripted and tactically shallow blandishments on Sunday talk shows or bigotry on talk radio, is that they are all essentially reductionist – as with this month’s cover of The National Review, enacting racism while pretending instead only to point to it. But asking our jurists to present themselves as machines when we all know otherwise is, as Justice Thomas might say, "nothing short of a denial of humanity."