I had a birthday recently, and I was happy that one of my oldest friends flew in to help me celebrate. Well, I was happy, until Joyce decided to remind me about one or two of the dumber things I have said over the years.
That made me think, that's how Sonia Sotomayor must feel about a few lines she delivered in a speech she gave eight years ago that are now being thrown back in her face in an effort to challenge her qualifications to sit on the Supreme Court.
In case you have not heard: Sotomayor, a federal appeals court judge, whose personal story of accomplishment is the stuff of which many a book has been written, has been tapped by President Obama to serve on the nation's highest court. She would be the the third woman to serve on the Supreme Court, and the first person of Latino heritage. And the lines at issue are from a speech she gave back in October 2001, when 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 context was her consideration of the question of whether issues like gender and national origin may make a difference in how judges arrive at their decisions, and she obviously concluded that those factors may and do.
Let's set aside the hilarious performance of that Prince of Belligerence Rush Limbaugh — who never seems to have met a minority whose accomplishments he could not find some way to diminish — calling Sotomayor a racist.
And let's even set aside those professional scolds, who are forever lecturing minorities to spend less time talking about ethnicity and more time focusing on educational achievement, who are now scrambling to find some way to tear down a woman whose intellectual and professional accomplishments are rivaled only by the president who nominated her.
Little mentioned is the fact that Sotomayor has more experience on the bench than any current justice did when nominated; certainly more than Clarence Thomas, whose political patrons clearly decided that his compelling biography outweighed his paper-thin judicial resume and lengthier record of questionable personal conduct.
Can I just tell you? Sotomayor's comments were unhelpful. Obama himself has distanced himself from them, and one can see why. Hierarchies of suffering are usually distasteful — "my pain means more than yours" rarely takes us anywhere.
And after all, what is empathy — a quality Obama himself has said he seeks in a justice — if not the ability to try to live in someone else's shoes? And in this increasingly diverse society of ours, there are a lot of other shoes to live in. Latinos, nor African-Americans, nor gays, nor the disabled should not have a lock on empathy.
But it is not a surprise that the defenders of the status quo are jumping all over Sotomayor, precisely because — one ill-considered phrase notwithstanding — her brilliance challenges the notion that the only people interested in challenging the rules are those who cannot play by them.
As Jeff Toobin points out in a recent essay in The New Yorker magazine, Chief Justice John Roberts is himself a representative of a different kind of identity. Toobin makes the point that the entire substance of Roberts' career has been in representing the interests of corporate defendants who've been sued by individuals or in reading and writing appellate briefs. No crying mothers searching for their sons in the bowels of the city jail for him; no factory workers worrying how to make ends meet on a salary two-thirds of what their male peers are making. None of that.
And Toobin further notes that Roberts' jurisprudence reflects the view that the court should almost always defer to the existing power relationships in society. Thus, in every major case since he became chief justice, Roberts has sided with the prosecution over the defense, the state over the condemned, the executive branch over the legislative, and the corporation over the individual. But Roberts' identity politics are not under discussion because — as a card-carrying member of the powers that have always been — his identity, values and motivations are somehow invisible. They are somehow deemed universal and the standard by which all others must be judged.
But to some of us, Roberts' identity is no more invisible than Sotomayor's and certainly no more universal. And indeed her candor about where she's coming from serves the valuable purpose of highlighting where everyone else is, too.