Sotomayor, Identity Politics, Legal Realism . . .

I am proud of President Obama's naming Sonia Sotomayor to the Supreme Court. I found myself alternatively laughing and crying while watching him make this historical appointment. I must say that she isn't the first woman of color nominated for the highest court - remember Lani Guinier. Unfortunately, the same tirades made against Guinier are being made against Sotomayor. And it is these tirades that this blog entry seeks to address.

1. Identity Politics - This is one phrase that the radical right has turned into an epithet. I think a little historical consideration is needed to appropriately contextualize what is meant by the term and how it is in use by everyone. My understanding of the origin of this term is through the Combahee River Collective, a group of poor/working class Black women, some of them lesbian, who were involved with political causes around Boston concerning poor Black women in the early and mid 1970s. At the time, many Black women were being murdered and there was no police attention to them because the women were assumed to be prostitutes (OK, much could be said about that, but I'll let it go for now). It was issues such as these that fueled their political activism. They wrote "We believe that the most profound and potentially the most radical politics come directly out of our own identity, as opposed to working to end someone else's oppression." (Combahee River Collective Statement) First of all, for once, a group of women of color were going to put themselves at the center of political discourse - they were not going to sacrifice themselves at the feet of someone else's issues. This is a radical statement because sexism requires women not to put their struggles as central - indeed, many women see their daily struggles as something that is their fault. Under a sexist framework, working for the "larger good" is what's best for society, but, as the Combahee River Collective suggests, this is not best for us. Secondly, this statement ultimately means that the range of people who make claims on the state expands and the issues of a much wider population must be contended with. Is this such a bad thing? Do White Males not have an identity (I know, academics debate this ad nauseum and I'm not going into this work)? They've been making their claims (clearly not uniformly as there is much diversity in that population) for years. Are we really still arguing about expanding the political pie? What is really meant by the "Democrats are practicing identity politics" with this appointment? What do conservatives mean? Who would they exclude? If no one, why would this be such a big deal?!

2. Judicial Activism - Here is another epithet hurled around by the right for anyone who finds constitutional justification for civil rights (of anyone, women, gays, people of color) or abortion. However, my question is whether "judicial activism" is really the sole province of the left. Jeffrey Toobin just wrote a piece in the New Yorker about Justice Roberts and his version of judicial activism. There was a column in the Washington Post today about judicial activism and the right. I don't think, in this day and age, we can afford to give the right wing a pass on textualists and originalists not being judicial activists. They have specific policy objectives that they can further through examining the text of the constitution narrowly or claiming that wasn't the original intent of the founders. Do you not think that Roberts' unwillingness to give deference to Congress about the Voting Rights Act is not a piece of judicial activism? It is thought that a decision to be made soon will gut the Act. Do we really think that attempts to dismantle Roe v. Wade would not be judicial activism? We, as lawyers, are taught to respect precedent and that there should be a damned good reason to overturn it. The same thing applies to legislation. We need real intellectual honesty when we evaluate this term and make the right account for what they mean by this. Is judicial activism by those who agree with them the only necessary activism? What does this mean for everyone else who does not narrowly fall into their interests?

3. Identity and the court - Justice Sotomayor stated that she thought as a Latina she could make wiser decisions than White men. I know that there is more to this statement than this, but let's take a deep breath. I think she's right and here's why. As all people who fall outside of the dominant group, she has to be fluent with how they operate in society (let's say the White men in the GOP), and with the people she grew up with and endured daily struggle. She's has a wider viewpoint than many of those on the right to be sure - she understands what it means to be a single mother (yep, it's not as simple as promoting marriage), she knows what it means to be divorced. She knows how people struggle in many ways because of what they look like/sound like, not because of who they are (the heart of the battle of anti-discrimination work). Let's not back away from this. The Supreme Court needs to be able to flexibly handle, within the bounds of the law, the claims of all Americans, not a select few.

4. The GOP Problem - It's on this note I'll end this blog entry. I think, as a fighting strategy, they should go ahead and critique legal realism, critical legal theory, etc. However, in doing so, they should really seek to define terms, explain what is meant, etc., not hurl terms as insults (i.e. socialist, radical, etc.). I think it's time to have a rich discussion about judicial philosophy and legal philosophy. However, to critique Sotomayor's credentials/qualifications/temperment is a personal attack of the Lee Atwater days of the GOP. It is personal attacks that leave the GOP vulnerable to critiques of being racist or sexist, or, both. Stop the name calling, stick to issues, and the GOP may not alienate the young, queer, people of color, and women . . . boy, can that tent get any smaller?