Sotomayor and Identity Politics

July 17, 2009

In early July 2009 I responded to an editorial perspective in the Des Moines Register newspaper in which the deputy editorial page editor argued for having more women in the federal judiciary. The editorial was written in anticipation of the Senate confirmation proceedings for Judge Sotomayor, nominated by President Obama to fill a vacancy on the U.S. Supreme court (due to the retirement of liberal Justice David Souter).

I wrote a lengthy essay in response to the editorial, which I expected would be edited down. To my delight the Des Moines Register editorial page editor contacted me and wanted to print my entire essay, which they did on Sunday, July 12. It is the longest of my opinion pieces to be published. Read the entire article below.

Here in Iowa the most listened-to talk radio station is WHO, AM 1140 in Des Moines. Their morning host, Jan Michaelson, is so popular that Rush Limbaugh’s show, which is on live at the same time as Michaelson’s, is taped and replayed an hour later so that Michaelson’s show can be heard live. On July 15 Jan Michaelson had me in studio for an hour and a half talking about Sotomayor, the confirmation proceedings, and a host of other issues. We have had wonderful feedback from the radio interview and from my opinion piece in the Des Moines Register. Since one of our goals at Rolling Stone Ministries is to get people to think biblically, the opportunities these past few days in Iowa have truly helped us meet that goal.

Des Moines Register July 12, 2009 Article: 

Sotomayor and Identity Politics 

Can’t blame Deputy Editorial Page Editor Linda Lantor Fandel for wanting more women in the judiciary. After all, she’s a woman, women make up more than half of the U.S. population, and the federal judiciary is only comprised of around 27% women. Further, Iowa has but one woman on the state Supreme Court. Given these statistical facts, Ms. Fandel is outraged, and argues that “this should change.” 

But has Ms. Fandel’s statistical observation made a case for more women in the judicial branch? Using her apparent reasoning (i.e., that the percentage of women in the judiciary should reflect the percentage of women in the general population) either she or Editorial Page Editor Carol Hunter should step aside, since women are obviously over-represented as editors of the editorial page of the Register (two out of two). 

Let us further scrutinize gender and racial disparities. Iowa’s United States Senators are both men. Over-representation. Both of California’s U.S. Senators are women. Over-representation. Two of the nine United States Supreme Court Justices are Jewish. Over-representation compared to the general population, which is less than 2% Jewish. In California it is estimated that one out of every eleven people is an illegal immigrant. Thus, for statistical symmetry, California’s judiciary should be comprised of 9% illegal immigrants. 

Everyone is part of a gender group and a racial group. Should we demand racial and gender parity only in appointed offices? What about elected office? How about private enterprise? The possibilities for quotas and “affirmative action” are endless. 

In reality, alternating “boy, girl” may work on the playground, but when it comes to judicial appointments (or elected offices, or editorial page editors) we need the best and brightest. Unfortunately, identity politics, where one vigorously supports a person based on ethnicity or gender, has clouded our collective thinking. Bill Clinton’s “I want a cabinet that looks like America” was a feel-good attempt to appear inclusive. However, the results were abysmal (think “Janet Reno”). 

Identity politics usually is a subterfuge for advancing ideology. For example, after the death of Justice Thurgood Marshall, the first African-American on the U.S. Supreme Court, there were cries for him to be replaced by another black. When Clarence Thomas was appointed by George H.W. Bush to replace Justice Marshall, opposition was strong, because Clarence Thomas wasn’t the “right kind” of black. Similarly, an articulate African-American female (a “twofer”), Janice Rogers Brown, was an associate Justice on the California Supreme Court prior to her nomination by George W. Bush to the federal appeals court for the District of Columbia. Her confirmation was stalled, though she was eventually confirmed on a 56-43 vote of the Senate. Why the delay and the close vote? As it turns out, she is a conservative—just not the “right kind” of black female. As a “white European male” I have much more in common with the views and values of Justice Janice Rogers Brown than of Supreme Court Justice David Souter, whom Sonia Sotomayor is set to replace. This helps illustrate how skewed identity politics is, and how it serves as a backdoor way to promote ideology, not parity or symmetry. 

As to Sonia Sotomayor, a threshold question that may seem impolitic is whether she would be a U.S. Supreme Court nominee if she were not Hispanic and female. Probably not. Her membership in a sexist (“exclusively female”) organization, her racially-tinged comment about a “wise Latina,” and her track record for reversals (the U.S. Supreme Court has reversed more than 60% of the opinions she wrote or joined) shows that she is a politically correct choice for this administration—not the best and brightest. However, the fact that she’s the “right kind of female” and the “right kind of Hispanic” will undoubtedly lead to an easy confirmation from a Senate where Democrats enjoy a super majority. 

The facts militate to the conclusion that Sonia Sotomayor’s appointment has more to do with political correctness and jockeying to please special interest groups that it does nominating the most qualified person for the U.S. Supreme Court. Perhaps we are stuck with identity politics that solely focuses on shouting, like the Buffalo Springfield in the song For What It’s Worth, “hooray for our side.” In a perfect world “our side” would not be women, men, black, white, Asian or Hispanic, but American. Until we reach the color-blind (and gender-blind) society, America will continue to be Balkanized into the tribalism we’ve allowed but never admitted. It’s past time that we truly reached across the aisle of race, gender and politics and put America first, regardless of the consequences. If doing so we might restore our collective confidence in a government that was designed to be of the people, by the people and for the people.