The Sonia Factor

Unless a couple of dozen US senators lose their minds at the last minute and vote against their own conscience, Federal Judge Sonia Sotomayor will make history today by becoming the first Hispanic Justice of the Supreme Court of the United States of America, and only the third woman to ever hold that august office.

Republican “anti-Sonia” hardliners, meanwhile, will have sealed their fate by not only alienating the Hispanic constituency (an ever-burgeoning segment of the public, with the Latin population now numbering over 42 million in the United States), but also by locking themselves into their ever more clear-cut image as knee-jerk reactionary dinosaurs wading deeper all the time into the tar pits of their own prejudices.

Try as they might, opposition senators have been unable to dig up any dirt that will stick to the brilliant 55-year-old jurist’s impeccable image. The only arguments that they have been able to raise in the grueling nomination hearings have been superficial to say the least. Every point of debate made against Judge Sotomayor has appeared subjective, involving issues that have seemed to be merely her word against that of the hardliners. They have accused her on the basis of a handful of rulings in her 17-year career on the Federal bench in which they argued that her decisions have disregarded such things as gun rights – as espoused, it bears saying, by the powerful National Rifle Association, not as stated in the Constitution – property rights and job discrimination claims by white employees. But while the opposing senators have continued to hammer on these issues, Sonia Sotomayor has been able to argue in all cases that her decisions stood on legal precedent, and hardliners have been unable to prove her wrong.

Moreover, the three-quarters of the Republicans in the Senate who are expected to vote against Judge Sotomayor have demonstrated in these hearings that their decision to do so is purely political and has more to do with racial issues and wanting to hurt President Obama than with safeguarding the country’s highest court. This is easy to see if you bear in mind that some of her harshest critics prior to the hearings – such as South Carolina Republican Senator Lindsey Graham, who grilled her mercilessly and hostilely in the hearings – have now declared that they will vote in her favor. Her brilliant performance under fire has obviously been the key to swaying these votes.

Republican Kit Bond of Missouri bluntly chided his fellow party members saying that partisanship had no place in debates over judges, adding that, "There's been no significant finding against her, there's been no public uprising against her…I will support her, I'll be proud for her, the community she represents and the American dream she shows is possible."

All things considered, the entire argument against her confirmation, then, has boiled down to a 2001 speech the judge made in which – in a rhetorical twist which even she has admitted was unfortunate – she said that she hoped a “wise Latina” would be able to make better decisions than a white male. Clearly, this was a statement that, if indeed public, had nothing to do with any decision of her court or with her investiture as an official of the Federal Justice System.

Furthermore, much has been made of this snippet of Judge Sotomayor’s statement, but little indeed of the context. First, the venue: The judge was speaking at the University of California at Berkeley, as a guest speaker for a symposium entitled “Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation”. The whole point of the speech within the context of such a specific event was for her to illustrate precisely how her ethnic background affected her as a person, a woman, a professional and a judge. It was a personal and somewhat emotional speech in which she pointed out that while she was an American, born and raised in New York City, she was also an American who liked “morcilla and garbanzos”, whose tastes were not only not like those of white mainstream Americans but also not even like those of Mexican Americans. Rather, they were the tastes of a “niuyorican” [New York Rican] a New Yorker of Puerto Rican descent, whose education was definitively mainstream, but whose background was specifically Hispanic and even more specifically Puerto Rican, within the melting pot of a multi-racial and multi-ethnic culture like that of the United States.

And then there is the specific context of the controversial phrase within the speech itself. Here’s what she actually said: “Whether born from experience or inherent physiological or cultural differences…our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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…Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.”

This obviously had a positive spin. What she was saying was that diversity was a good thing – something hardliner fundamentalists disagree with, which is precisely what makes them hardliners and fundamentalists – that people with rich life experiences and a more ample view of society and life might well be better equipped to make insightful and judiciously compassionate decisions than those who had led a relatively sheltered or highly indoctrinated existence. She was not, as Republican hardliners tried to make it sound, saying that she could out-think any white man, just because she was Hispanic.

To be familiar with some 450 Federal Court decisions handed down by her, as the senators were, and pretend that this one statement disqualified her was mean-spirited at best and discriminatory at worst – besides being just plain ludicrous and stupid. So much so, that it belies any claim of objectivity these senators could possibly offer and makes manifest the fact that they simply felt threatened as white males by this “uppity Latina”. Far from making her eat her words, however, they made her point by showing just how obtuse a group of powerful white male elitists could be.

The point is that if Sonia Sotomayor had been an Italian-American or an Irish-American, or a German-American, for instance, this type of issue would never have come up in a confirmation hearing. Yet all three of these other ethnic groups saw other moments in the evolution of American society in which their ethnicity might have been questioned or have precluded them from participation at such levels. The triumph of Judge Sotomayor’s appointment, when it comes, is enhanced by the fact that her ethnic group is one that has still not been fully accepted by the American establishment. Her struggle to win a spot on the Supreme Court bench, then, brings to light underlying racial prejudices that still require treatment in the United States. And her victory will have brought the US a step closer to being a truly open society, in deed and in spirit, rather than merely in the letter of the law.