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Stuart Taylor Skewers Sotomayor?s Identity Politics ... Sort Of

How could I not like Stuart Taylor?s masterful dissection of Judge Sonia Sotomayor?s identity politics in his current National Journal column? After all, much of it echoes what I argued here and here, only better.

?So accustomed have we become to identity politics,? Taylor writes,

that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

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.
Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: ?I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn?t lived that life? -- and had proceeded to speak of ?inherent physiological or cultural differences.?

Taylor?s most effective demolition of Judge Sotomayor?s fixation on her own identity, however, is not what he says; it is his extensive, unfiltered quotation of what she has said. Overall, an impressive performance (Taylor?s, not Sotomayor?s).

So, what?s not to like? Well, as it happens, something. Taylor, smart and sensible as he is, hasn?t altogether recovered from being a liberal (albeit a moderate one). Consider, to see what I mean, how he responds to a point I made in my last Sotomayor post. After quoting her outrageous hope ?that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn?t lived that life,? I then added the following:

Although Judge Sotomayor?s comment is indeed extreme, and deserving of more attention than it has received [which Taylor?s current column does much to remedy], doesn?t it in essence simply state what all the ?diversity? arguments logically imply? Most diversiphiles may not assert ? indeed, may not even believe ? that a wise Latina woman/black/whatever will more often than not reach a better conclusion than a white male, but must not all diversiphiles believe that a court with such a person or persons will most of the time reach better conclusions than a court without? If that weren?t true, after all,what would be the point of ?diversity,? aside from ?racial balance for its own sake??

How does Taylor respond? Well, first, he is as outraged as any reasonable person should be at her offensive assumption (it doesn?t seem to be merely a ?hope?) that her Latina-ness equips her to be a better judge than others, especially males, who lack her ethnic and gender identity. But then he gives the obligatory nod to ?diversity,? adding that he share?s

Sotomayor?s view that presidents should seek more ethnic and gender diversity on the bench, so that members of historically excluded groups can see people like themselves in important positions and because collegial bodies tend to act more wisely when informed by a diversity of experiences.

One flaw, among many, of supporting ethnic and gender identity ?so that members of historically excluded groups can see people like themselves in important positions? (aside from the question of whether courts should be representative bodies) is that, as that notion is interpreted and applied today, only some groups seem to deserve to ?see people like themselves? in those positions. If there is concern that, say, born again Christians are ?underrepresented? on the bench, I?ve somehow missed it. The notion also assumes, incorrectly I believe, that all members of even the favored groups are ?like? one another, as though racial and ethnic identity give everyone the same ?experiences.? If that were the case, there would have been more joy among blacks at Clarence Thomas?s appointment and among Hispanics at the failed nomination of Miguel Estrada to the Court of Appeals for the District of Columbia.

Taylor, in short, has no use for Sotomayor?s claim that wise Latinas will reach better judicial conclusions than white males, but he nevertheless believes that a court with a wise Latina would reach better results than one with only males, no Latinas or Latinos, etc. His justification for this faith (I don?t know that there is evidence for it) is that ?collegial bodies tend to act more wisely when informed by a diversity of experiences.?

Now on one level this may well be true, but the level is so high, so abstract, so removed from the actual ?experiences? of courts that it becomes a banality, a sentiment more than an analysis. That sentiment, appealing as it may be, has no real bite (or should have no real bite) in the actual controversies over ?diversity? today. That is the case because, among other reasons, it assumes what it asserts: first, that simply being Latina or black or female or whatever is enough to guarantee relevant ?diversity of experience[],? and second, even if that were true, that the ?diversity of experience[]? provided by racial, ethnic, or gender identity is more important than the virtually endless plethora of possible ?experiences? that no one cares about and no one demands as pre-requisites for judicial appointments. Military experience? Growing up in a very large/very small family, perhaps with a single parent? Handicap? Experience working on a farm? Experience as a consumer, i.e., on the receiving end, of the criminal justice system? Athletic success/failure? Poverty? Manual labor? Experience as a K-12 teacher or junior college student? The possibilities of relevant ?diversity of experience[]? are almost endless.

The problem, in short, with Taylor?s endorsement of ?ethnic and gender diversity? is not that diversity is bad but that, on the level where it is true, it is a banality. And where it is not true is the very place where its rubber actually meets the road of contemporary controversy ? in effect equating identity and its accompanying experience with race and ethnicity, and thus leading to and reinforcing our current regime of ossified racial preference. There, it suffers all the inanity and offensiveness of Sotomayor?s identity über alles assertions so well skewered by Taylor in his more sensible, and fortunately more typical, analysis.

Full post as published by Discriminations on May 22, 2009 (boomark / email).