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A Judge With a View

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Posted on Aug 6, 2009
Sotomayor
AP / J. Scott Applewhite

Sonia Sotomayor fields a question at her Senate confirmation hearing last month. Sitting directly behind her, from the left, are her stepfather, Omar Lopez; her mother, Celina; and her brother, Juan Luis Sotomayor.

By Marcia Alesan Dawkins

In what is often referred to as a post-racial and post-feminist Obama America, questions of prejudice and discrimination can often be treated with ambivalence, if they are treated at all. One reason for this ambivalence is the argument that the United States has reached a moment in which basic rights for all have been won. Constituents who support this post- perspective remind mainstream society that racial and gender equality is not only our destiny but our reality. Because anyone can be successful and independent, our society is now said to have transcended our culture wars.

Despite this peaceful ethos, culture wars are always lurking. Such has been the case with Judge Sonia Sotomayor’s confirmation to the U.S. Supreme Court. While many conservatives were up in arms over her “rhetorical flourish” and busied themselves making pointed ad hominem attacks via Twitter, I began to realize that what they were really objecting to was Sotomayor’s standpoint, or expression of her powerful and legitimate voice as a “wise Latina judge.” This, more than any judgment about affirmative action, abortion or the Second Amendment, constitutes the challenge Sotomayor has posed to her opponents. It has to do with her ability and willingness to exercise a reflective self-identity that also seeks to uphold the legal and cultural structures and that extend beyond the self. 

Put differently, Sotomayor’s critics appear unwilling to acknowledge that members of certain groups may have special insights into particular lives and issues. More to the point, critics are unwilling to acknowledge that Sotomayor’s membership in these groups comes with privileges that can be considered a form of expertise, especially in a context in which the nation’s racial majority is changing. At the same time, critics use the expression of her standpoint to discount her ability to appeal to the law as the ultimate authority when exercising her profession. This works to pit her supposed ethnic or “folk” knowledge against official judiciary objectivity. It also implies that since she would express her standpoint, she would use it unfairly. These critiques have led Sotomayor to publicly qualify her own words, explaining that she did not intend to argue that life experiences could or should overrule the law.

As I watched the hearings and confirmation debate unfold, I was struck by three ways in which Sotomayor’s standpoint both answers her critics and raises new questions: recognition, status, and communication.

First, in keeping with the definition of a “standpoint” as that which lends an interpretive framework to a person’s life, Sotomayor recognizes her own subjectivity and partiality, and, in turn, her social privileges and location. That means that she may have some insights, but that she may also be limited in some of her views. Thus, she says, “the law commands a result.” In answering this way she also asks her colleagues and critics to recognize their own respective standpoints. Whether they are willing to do so varied as they confronted her on this issue.

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Second, Sotomayor’s life experiences reflect a sense of identity developed through her engagement with many communities. This means that she holds an “outsider-within” status. Outsiders-within, like Sotomayor, can access the knowledge of the law but are questioned when they claim that knowledge and seek positions of power. Also, Sotomayor’s status as the first Latina and third woman to hold a seat also explains why we watch as critics give voice to their fears that she is an “activist judge.” Translation: Because she may not share all of the assumptions traditionally held by members of the court, and may find some of them inaccurate or even implausible, she may advocate on behalf of issues that require a new type of decision-making process that they can’t master. This fear is completely unfounded and can be put to rest by an objective study of her record, as Sen. Dianne Feinstein pointed out. 

At the end of the day, the struggle over Sotomayor’s viewpoint and voice has important ramifications for legislative politics and identity politics in our country. Given her confirmation, these hearings and votes have been anything but post-racial or post-feminist. Rather, they have shown how race and gender work together to create similar and opposing experiences, identities and communication styles. And, perhaps more important, they have shown us what happens when differing experiences, identities and communication styles meet. This is one explanation for labeling Sotomayor’s standpoint “reverse racism” or “activism” or “prejudice” or “empathy” or “troubling”—simply to question its legitimacy and her qualification for the position on the basis of ethics. 

Approached differently, however, such labeling signals the fact that Sotomayor might be right and that her ability to recognize her own and others’ limitations is a key ingredient for sound and ethical deliberation. After all, isn’t the point of judicial deliberation attending to different and distinct arguments about human experience? Isn’t justice about measuring the law against a person’s experiences and his or her own interpretations and articulations of these experiences? Historically, this kind of judging has been the backbone of landmark cases such as Brown v. Board of Education and Roe v. Wade.

It is exactly this kind of judging that makes Sotomayor a well-qualified judge who values honest communication and the law equally as grounds for sound decision making. Whichever way history chooses to tell it, the hearings and the vote have shown the importance of communication for a diversifying world—with all its political incorrectness—as well as its impact when our worlds and decisions converge. 


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By cyrena, August 12, 2009 at 1:13 pm Link to this comment

First, thank yous and kudos to Marcia Alesan Dawkins!!! This is an excellent piece, and I so appreciated reading it, as well as the comments (some of them) that the article has generated. It would appear that most informed Americans are as appreative as well, that we will actually have a well qualified and experienced Justice on the Supreme Court. (Thurgood Marshall is still my hero,  but I’m definitely delighted to add Justice Sotomayor to the list.)
Now..

By Jean Gerard, August 7 at 10:45 pm

“…Conventional Americans in general prove by their behavior that they do not readily relate to problems of people they regard as “different from us.”  In fact, they insist upon American “exceptionalism” which separates them from everybody else in the world.  The word is not well understood anywhere, least of all here. But its implications are clear: An empathetic person is one who tries to understand differences in the way people feel and think. Empathetic people tend to be open-minded and do not make snap judgments.  Empathy is a valuable trait, not a liability.”

Jean Gerard,
Thanks for making this very important point about American exceptionalism. The word (or even the theory of it) is NOT well understood, even though it is the mindset of Conventional Americans. That’s where we get the NIMBY’s (not in my backyard) and it is part of the exceptional American mentality. Sadly, this mentality is particularly evident these days in terms of the Health Care debate. The biggest complainers of a medicare type program for ALL Americans come from those who already have their OWN medicare cards tucked carefully into their wallets, and they’re worried that making the same access to health care for ALL Americans will somehow mean that something will be TAKEN from them. It’s the standard “Conventional American Exceptionalism.”

Anyway, I was actually unfamiliar with the term myself (American Exceptionalism) until I attended a lecture at my UC Campus, delivered by some old white dude who had written a book on it. I can’t even remember his name,  maybe because he was SOOOO awful that I wanted to block it out. (what an arrogant bigot he was.)

Fortunately, I’ve also had the privilege of learning and hearing from Howard Zinn and Richard Falk, who both do such superb job explaining this theory and it’s dangers. The unilateral militarism and pre-preemptive war (Bush Doctrine) are natural products of this American Exceptionalism mindset.

Meantime, I like to believe that the confirmation of Sonia Sotomayor to the High Court is another step AWAY from that dangerous mentality, and back to what we as Americans claim as a mandate…the Constitution and the rule of law. (NOT the rule of wealthy old white guys and the corporations they control.)

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By LibertyWatch, August 8, 2009 at 7:39 am Link to this comment

Yeah for her! Go get’em girl! Protect our Constitution from the corporate crooks destroying our country! The old Repuke bigots could not upset her or distort her words to hurt her.

PEACE by Popular Demand!

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By Jean Gerard, August 7, 2009 at 7:45 pm Link to this comment
(Unregistered commenter)

With so much emphasis on the word “empathy” in Sotomajor’s hearings, it came to light that many of the Senators don’t like empathy - are even suspicious of it.  That is not surprising. Conventional Americans in general prove by their behavior that they do not readily relate to problems of people they regard as “different from us.”  In fact, they insist upon American “exceptionalism” which separates them from everybody else in the world.  The word is not well understood anywhere, least of all here. But its implications are clear: An empathetic person is one who tries to understand differences in the way people feel and think. Empathetic people tend to be open-minded and do not make snap judgments.  Empathy is a valuable trait, not a liability.

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By ChaoticGood, August 7, 2009 at 1:24 pm Link to this comment

I really hope that Sotomayer will help turn America back from the Republican Facist Authoritarian dictatorship course that we are on.  I fear that she will be not activist enough to do this. Something has to counter the horrible right-wing junta that has all but taken over the Supreme Court.

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By randomstu, August 7, 2009 at 10:57 am Link to this comment

Jim Z wrote:
> Any group that claims, or endeavors, to be
> functional & competent in a world where white
> males are rapidly becoming a minority of the
> population, had better broaden the
> representativeness of its demographics. That’s
> just common sense.

Common sense? Say for example that you had a serious tooth pain. In choosing a dentist, it would be common sense to take into account his skill in his profession, his costs, his honesty and friendliness, the convenience and location of his office, etc.

If you let your decision be altered by the dentist’s skin color, sex, or where his parents were born… what’s common sensical about that?? Yet this is exact the type of judgement you’re advocating here.

My deep suspicion is that if you really had that horrible toothache, you’d choose the dentist who was most qualified at his particular job. You wouldn’t let your prejudices about skin color etc get in the way. But when you’re telling OTHER people what to do, this type of clarity gets lost.

Since you attach unreasonable importance to skin color, you project this skewed perception onto the world. In fact, critical thinking reveals that competence is NOT determined by skin-color or gender. If you understand this, then you can stop imposing your prejudices on others.

Stuart
http://stuart-randomthoughts.blogspot.com/

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By Jim Z., August 7, 2009 at 10:20 am Link to this comment

I can only claim to have knowledge or intight into the conditions or the lives of the poor, of women, of minorities, etc., by book learing, or by frankly infrequent contact with poor or minority individuals or groups, and always second-hand(edly) regarding women.  As a male having been raised in a family headed by well-compensated professionals in a middle class white neighborhood, and educated at a state universitie and a private university, wouldn’t I be highly presumptuous to claim sufficient understanding thefor?

Any group that claims, or endeavors, to be functional & competent in a world where white males are rapidly becoming a minority of the population, had better broaden the representativeness of its demographics.  That’s just common sense.  It applies to the corporate world, to education, to law enforcement, to the judiciary, to virtually every aspect of public life.  This has nothing to do with reverse discrimination; it has to do with orgasnizational competence.

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By randomstu, August 7, 2009 at 9:52 am Link to this comment

> Sotomayor’s critics appear unwilling to
> acknowledge that members of certain groups may
> have special insights into particular lives and
> issues.

If you claim that members of the Latino Women group (or any group similarly defined) have superior insights in some cases, then it follows they must have inferior insights in other issues.

So there will certainly arise situations where someone will say, “I don’t want to hire her for this job, because as a Latina Woman, she lacks the special insights we’re looking for.” Whatever you say in objection to such a statement will be hallow and hypocritical. Because the statement is EXACTLY the same as the claim you make that a Latina Woman has special insights.

Stuart
http://stuart-randomthoughts.blogspot.com/

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By mystery, August 6, 2009 at 11:18 pm Link to this comment
(Unregistered commenter)

“expertise” in WHAT? calling to find out how to “rule” in Mahr vs Ashcroft? The judicial branch of the US Gov is broken stated journalists: and will continue to be broken as the member of the Congressional Judicial committee indicated as “there is trouble in “recall”; such as Hillary C “not recalling” 59 times to prevent being jailed herself;
Eric Holder, USAG, asked the JUDGES how he was “supposed” to do his job: deception is the name of the game, not “democracy”; mislead, deceive, have all the $ you want for you, family & friends; do whatever you want, whenever you want, and never be brought to justice; we have SUCCESSFULLY done this in the USA for years;
The LAWS are on the books for LOOKS: none are being enforced, and any one anywhere any place & any time can do whatever they choose to the PEOPLE: and justice fled the land decades ago; and Antonin Scalia looked into the camera’s & declared that the PEOPLE of the USA are the problem: as WE wrote the “laws”;
America: land of the DECEIVED: and the ENSLAVED to the GREED of “politicians” who’s agenda is to EXPLOIT which is a CRIME: backed up by a judicial system more criminal than any appearing before them.

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G.Anderson's avatar

By G.Anderson, August 6, 2009 at 1:45 pm Link to this comment

“Put differently, Sotomayor’s critics appear unwilling to acknowledge that members of certain groups may have special insights into particular lives and issues”

It’s been my experience, that too often this view has been used to indulge prejudice. One persons special insight, from someone else’s point of view becomes a justification for an atrocity.

I prefer to look at the inside of someone rather than the outside, only time will tell exactly what kind of justice Sotomayer will make.

That being said relativistic views of culture offer very little understanding of the wrongs that people do to one another, nor does embracing relativism offer a solution to our social ills.

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