Sonia Sotomayor is either an injudicious advocate of identity politics or candidly realistic about the possibility of entirely objective decision-making. "Whether born from experience or inherent physiological or cultural differences ... our gender and national origins may and will make a difference in our judging," Sotomayor observed in a now widely quoted 2002 speech at U.C. Berkeley law school. " ... I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."
That different people perceive these comments differently is perhaps evidence of Sotomayor's point ("I rest my case," she might declare after reading varying interpretations of her speech offered by readers with varying political sympathies.) But the speech itself alternates between commonsensical observations about the difficulties of entirely transcending "personal sympathies and prejudices" and ideological assertions about the virtues of celebrating rather than trying to transcend demographic difference: "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society," Sotomayor asked, adding, in her most inflammatory statement, "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."
I can't help but wonder if Ruth Bader Ginsburg would entirely agree (at least with regard to the superiority of women's wisdom.) In the early 1970s, as founding director of the ACLU Women's Rights Project, Ginsburg led a groundbreaking battle against discriminatory laws that meted out rights or entitlements on the basis of sex and assumptions about characterological, temperamental, and intellectual differences between men and women. Ginsburg was at the vanguard of second wave, equality feminism, fighting to ensure that women would be treated as individuals under law, not stereotypic representatives of their sex (or their "gender" as Ginsburg learned to say, incorrectly but strategically, reportedly to avoid titillating or distracting the male justices who decided her cases.)
Her own life story testified to the ability of a woman to compete with men intellectually and professionally, even when held to higher standards and handicapped by the legalized discrimination in education and employment that prevailed throughout the early years of her career. When Ginsberg briefed the landmark case of Reed v Reed in 1971 and helped win the first Supreme Court decision striking down a state law on grounds of sex discrimination, law schools still discriminated against female applicants with impunity. (Sex discrimination in education was finally outlawed the following year, with passage of Title IX of the Civil Rights Act.) Ginsburg is an exceptionally brilliant and apparently driven woman who succeeded without the aid of legal protections, affirmative action programs, or social and political mandates to diversify. Recently, however, as the lone woman on the Supreme Court, she has clearly indicated her desire for company, and President Obama was under obvious pressure to choose the next Supreme Court justice partly on the basis of sex.
Women's groups have generally responded to Sotomayor's nomination with predictable, grateful enthusiasm (mitigated by a little cautious optimism from some abortion rights advocates.) "We urged President Obama to choose a qualified woman, and he did just that," Ellen Malcolm, President of Emily's list, rejoices. "What more do women want? We want a swift confirmation in the U.S. Senate ...," NOW President Kim Gandy declares. "Who's we," I can't help responding. Statements like this make me wary of my own preference for a second female justice. Does the chauvinistic reaction to Sotomayor's nomination represent a repudiation of Ginsburg's fight for equality?
The short answer is probably no, but it requires some explaining. There's an obvious tension between demanding an end to the differential treatment of men and women under law, and the stereotyping it reflected, and celebrating the president's apparent consideration of sex (or gender) in making a judicial appointment. But it's an unavoidable essential tension at the heart of virtually all civil rights movements.
Discrimination against any particular demographic group necessarily relies on assumptions that people within each group share characteristics that justify or even demand laws that treat them differently. If, for example, women are regarded as naturally pacific, physically and emotionally fragile, submissive, or inept at math and science relative to men, then laws and customs exempting them from the draft, limiting their admission to engineering schools, or disqualifying them from leadership positions in politics or the private sector are easily rationalized. Discrimination treats people as prototypes or "average" members of targeted groups. Since ideas about "average" women, and "average" African-Americans, Asians, or Hispanics are compendiums of prejudices and since none of us is merely average anyway, equality requires recognizing that each of us is an individual. Politics, however, requires solidarity. In order to inspire people to organize against their discriminatory treatment, you have to convince them that they are not only individuals but members of a collective with a common history of subordination and perhaps a common culture, forged in no small part by legal segregation.
So to suggest that female justices are apt to be more alert to the subtleties of employment discrimination against women, as Justice Ginsburg has suggested in criticizing the Court's recent rulings on pay and pregnancy discrimination, is not to gainsay the virtues of gender neutrality under law. And it was not mere sentimentalism - or inappropriate judicial empathy -- that led Ginsburg to decry the evident inability of her male colleagues to recognize the shame a junior high school girl feels when strip-searched by school administrators who suspect her of hiding advil in her underwear. How might a judge determine what constitutes an unreasonable search without the ability to understand its actual effect on the actual human being subjected to it?
Right and left, people demand empathy from judges; they differ only in choosing its beneficiaries: Anti-abortion activists want judges to display empathy for fetuses; abortion rights advocates want empathy for young women seeking abortions who are confronted by angry protesters on their way into clinics; free speech advocates want empathy for protesters effectively silenced by buffer zones. Justice is a bit like literary criticism: it requires engagement and detachment, empathy tempered by ruthlessness.
Reason itself requires " a continued ability to experience feelings," neurologist Antonio Damasio wrote in Descartes Error. Of course emotions can "cause havoc in the processes of reasoning," Damasio acknowledged. But the "absence of emotion and feeling is no less damaging ... certain aspects of the process of emotion and feeling are indispensable for rationality." Justice Scalia, whose opinions are often as angry as they are tightly argued, might agree.
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