‘You do not choose to be a son or a daughter,” argues Kwame Anthony Appiah in The Ethics of Identity. “A Serb or a Bosnian; a Korean or an Mbuti … In all sorts of ways … our identities are neither wholly scripted for us nor wholly scripted by us.”
We are all a product of our time and place. Born in the midst of a random variety of narratives over which we have no control, most of us spend our lives trying to write the best story we can with the material we have been given. Some struggle with this as a concept. Desperate to think of themselves as inspired, original and above all, self-made, they are at pains to deny that their script has been partially penned by anyone other than themselves. Their reluctance is understandable: who would voluntarily cede editorial control over their own lives?
And yet it is really only possible to imagine for those who have power and refuse to interrogate it. The man in high office is never asked how he balances work and family, and the straight person is never asked when they realised they were straight. But just because the issue of their identity never really materialises doesn’t mean they don’t have one, let alone many.
Those who insist that their opinions and emotions are independent of their experiences and identities ultimately reveal not originality but conceit: having deluded themselves into believing that they do not involuntarily belong to anything, they start to assume that everything belongs to them.
Herein lies the root of the rightwing attacks on Barack Obama’s nominee to the US supreme court, Sonia Sotomayor, that have wavered over the past two weeks between febrile and juvenile.
Of the 110 supreme court justices that have ever been confirmed, more than 98% have been white and more than 98% male. For the first 178 of its 220 years, the court was completely dominated by white men. At present, seven of nine of the justices are white men. Now one of them is leaving and Obama has had the audacity to nominate a Latina. Suddenly, conservatives are concerned about meritocracy, racism and the prospect of minorities getting a fair shake before the law. And that minority would be white men.
“God help you if you’re a white male coming before her bench,” said the Republican leader Michael Steele.
Fulminating against the shortlist from which Sotomayor was picked, conservative crusader Pat Buchanan said: “You got down to four women, not a single white male – all women … Probably half of the great lawyers and judges are white males in this country. To rule them out, why? Because of sex and because of their race is wrong, I think.”
“This is pure, pure, pandering to the Hispanics,” claimed CNN’s Poujadist anchor, Lou Dobbs.
It’s not difficult to see why they’re so frustrated. Sotomayor, 54, has a compelling biography. Raised in the Bronx housing projects by Puerto Rican parents, her father, a factory worker, died when she was nine. Her mother was a nurse. As a child she was diagnosed with diabetes. But still managed to win scholarships to Princeton, where she graduated top of her class, and from there to Yale, where she edited the Yale Law Journal. After a brief stint in private practice she was nominated to the federal bench, where she spent five years before being nominated to the court of appeals. Her record on both courts reveals a centrist, pragmatic, liberal judge unworthy of a conservative hate campaign.
With her stellar academic achievements and a moderate judicial record, the right has had to concentrate not on what she has done but who she is, claiming she was only picked because she is a Latina and reviling her as a hater of white men.
The fact that she is a Latina is certainly relevant. Given the court’s imbalances, her gender and ethnicity are no accident. Nor are these kinds of considerations new. Historically, court appointments have always been made with diversity in mind – to make sure certain regions, religions and immigrant groups were represented.
Research shows that this diversity is no mere window dressing. A 2005 Yale Law Journal study found not only that “female judges were significantly more likely than male judges to find for plaintiffs in sexual harassment cases” but also that “the presence of a female judge significantly increased the probability that a male” on a three judge panel “would find for the plaintiff”.
And yet to suggest she was only nominated because she is a Latina detracts from her considerable achievements. No white man with her qualifications would be accused of that, even though that is precisely how things have worked for most of the last two centuries. If anyone on that bench has earned the right to be there, she has.
The notion she would discriminate against white men stems from a speech made in Berkeley, California, in 2001 during which she said: “I would hope 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.”
The statement is problematic. Evoking a wealth of experiences to inform an argument makes sense. But to substitute those experiences for the argument itself fetishises identity and mistakes it for intellect. Moreover, neither gender nor ethnicity has a monopoly on wisdom. A wise white man, almost by definition, would reach smart conclusions too, while there are plenty of black and brown men and women who don’t.
After all, her future colleague would be the ultra-conservative justice Clarence Thomas. Like Sotomayor, he grew up non-white and poor – but they agree on little and he has proven himself to be anything but wise.
The entire speech, and others she has given elsewhere, offers more nuance than the soundbite and gives a nod to some of these arguments, making it far more sophisticated than an essentialist tirade. But notwithstanding its flaws, the basic point that judges come to cases with personal baggage is almost unarguable.
In other circumstances, such statements have raised few eyebrows. When the conservative judge Samuel Alito was being confirmed in 2006, he confessed that being the son of Italian immigrants had an impact on his rulings. “When a case comes before me involving, let’s say, someone who is an immigrant, I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.”
So, far more stunning than Sotomayor’s speech itself has been the conservative response to it. Sotomayor has been branded a “bigot”, a “racist”, and a “reverse racist” by men like Rush Limbaugh and Glenn Beck who – without any sense of irony – are attacking identity politics in a bid to defend white masculinity.
“Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority,” claims Stuart Taylor in the National Journal. In a world where seven Latinas were on the supreme court and a white man was being nominated for the first time they might even have a point. That, however is not the world we live in.