There’s been pushback, even among some conservatives, against criticizing Sonia Sotomayor for her actions in Ricci and her “wise Latina” comments. In the former, it is argued that she merely followed the law. In the latter, she was merely saying that she was, like all of us, a product of her background and experience, which will necessarily have some impact on her views. Needless to say, I disagree.
First, let’s understand that the main criticism of Sotomayor on Ricci has not focused on her application of Title VII. (Though originalism does not mean mindlessly upholding 50 years of judicial liberalism. The Warren Court, for example, was a long time ago — a lot of what were once innovations are now precedents.) She has been criticized mainly for participating in an effort to deny the firefighters’ claims the widest possible hearing. Why? Possibly because the case shows the routine effects of “disparate impact” diktats in an unfavorable light. One hopes it’s a question she’ll answer — or even be asked — during her confirmation hearings.
Second, few people object to Sotomayor invoking her biography as a Puerto Rican woman who came from a disadvantaged background in the Bronx to graduate from Ivy League schools and become a federal judge. To reduce her full Berkley remarks to an inoffensive paean to experience and the limits of impartiality strikes me less as a fair-minded reading than an exercise in wishful thinking. But in any event, her remarks should not be divorced from the context in which they were delivered: she was speaking to a multiculturalist audience as a represenative of a judicial liberalism inclined toward group rights. It is appropriate to use her nomination as an occasion to debate that conception of justice.
Moreover, the demographics of this country have reached the point where racialist and separatist statements by nonwhites who aspire to high office have to be held to the same standard as those of whites. That doesn’t mean pretending that white men today have it as bad as blacks did under Jim Crow or whining about white victimhood. But it does mean that, as a matter of political norms, racial statements that would be inappropriate for a white man to make should be considered inappropriate for others to make.
We are confronted with an approach to judging that, while stopping well short of full-blown critical legal theory, sees itself as helping designated victim groups overcome designated oppressor groups. Obama’s statements about the judiciary illustrate this more clearly than Sotomayor’s. As bad as the prattling about “empathy” is, this is a very selective empathy. Empathy is merely a code word for judicial liberalism. And Sotomayor is clearly a judicial liberal.
One more thing: Nominees say things that will help them get confirmed. Just because you can find quotes where judicial liberals talk about upholding the law rather than legislating from the bench and judicial conservatives talk about their empathy for puppy dogs and how they never, ever thought about Roe v. Wade before doesn’t mean we aren’t talking about different judicial philosophies.