Of Race, Gender and Justice
This week I was asked to testify before the Senate Judiciary Committee regarding the nomination of Judge Sonia Sotomayor to the Supreme Court. Here’s what I said.
I testify today not as a wise Latina woman, but as an American who believes that skin color and national origin should not determine who gets a job, promotion, or public contract, or who gets into college or receives a scholarship.
My message today is straightforward. Do not vote to confirm Judge Sonia Sotomayor. I say this with some regret, because I believe Judge Sotomayor’s personal story is an inspiring one, which proves that this is truly a land of opportunity where circumstances of birth and class do not determine whether you can succeed.
Unfortunately, based on her statements both on and off the bench, I do not believe Judge Sotomayor necessarily shares that view. It is clear from her record that she has drunk deep from the well of identity politics. I know a lot about that well, and I can tell you that it is dark and poisonous. It is, in my view, impossible to be a fair judge and also believe that one’s race, ethnicity, and sex should determine how someone will rule as a judge.
Despite her assurances to this Committee over the last few days that her statement 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" was simply "a rhetorical flourish that fell flat," nothing could be further from the truth. Judge Sotomayor’s words weren’t uttered off the cuff. They were carefully crafted, repeated — not just once or even twice — but at least seven times over several years. If Judge Sotomayor were a white man who suggested that whites or males made better judges, we would not be having this discussion because the nominee would have been forced to withdraw once those words became public.
Judge Sotomayor’s offensive words are a reflection of her much greater body of work as an ethnic activist and judge. Identity politics is at the core of who this woman is. And let me be clear here, I am not talking about the understandable pride in one’s ancestry or ethnic roots, which is both common and natural in a country as diverse and pluralistic as ours. Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one’s own group are victims in a perpetual power struggle with the majority.
From her earliest days at Princeton University and later Yale Law School to her 12-year involvement with the Puerto Rican Legal Defense and Education Fund to her speeches and writings, including her jurisprudence, Judge Sotomayor has consistently displayed an affinity for such views.
As an undergraduate, she actively pushed for race-based goals and timetables in faculty hiring.
In her senior thesis, she refused to identify the U.S. Congress by its proper name, instead referring to it as the "North American Congress" or the "Mainland Congress."
During her tenure with the Puerto Rican Legal Defense and Education Fund, she urged quota-seeking lawsuits challenging civil-service exams.
She opposed the death penalty as racist.
She made dubious arguments in support of bilingual education and tried to equate English language requirements with national origin discrimination.
As a judge, she dissented from an opinion that the Voting Rights Act does not give prison inmates the right to vote.
Finally, and perhaps most dramatically, she showed in the New Haven firefighters case a willingness to let her policy preferences guide her, ruling that it was perfectly lawful for the city there to throw out the results of a promotion exam because those who did well on it were the wrong color.
Although she has attempted this week to back away from her own words — and has accused her critics of taking them out of context — the record is clear: Identity politics is at the core of Judge Sotomayor’s self-definition. It has guided her involvement in advocacy groups, been the topic of much of her public writing and speeches, and influenced her interpretation of law.
There is no reason to believe that her elevation to the Supreme Court will temper this inclination, and much reason to fear that it will play an important role in how she approaches the cases that will come before her if she is confirmed. I therefore strongly urge you not to confirm Judge Sotomayor as an associate justice of the Supreme Court.