The argument goes that because Judge Sotomayor is Latina, and has spoken as a Latina, that she is "biased" (with strident claims that she is "racist") and therefore that she is influenced by "identity politics." The argument then goes on to say state that justice is "blind" and "color-blind" so the personal background of a judge does not matter. This then circles back around to Sotomayor's "race" (sic meaning ethnicity) and that because she claims her Puerto Rican and Latina heritage that she engages in "identity politics." And it goes on and on, round and round like some Tommy two note.

The implication of the claims of identity politics and their inherent racism is that white males are inherently more neutral and objective. They are purportedly reasoned individuals who can interpret the law fairly. It seems a waste of time to argue the embedded racism and sexism of such a base assumption.

Also implied, is that this argument of inherent "fairness" is affirmed by the fact that 106 of 110 Supreme Court Justices have been white males. Under this argument, there is not only no reason for "diversity" to be an issue on the Supreme Court, but by extension, it is not an issue anywhere within United States. This is not a conceptual leap on my part as one of the major issues among the "conservatives" is the issue of "affirmative action." This will certainly be a line of questioning in Judge Sotomayor's confirmation hearings.

However, (at least) two current Supreme Court justices would not have been seen as "white" all that long ago. Southern and Eastern European immigrants were restricted as being "undesirable" under the 1924 Johnson-Reed Act. Not to mention, that being Catholic was long a point of fear and discrimination in the United States. Alito in particular brought up his immigrant origins and how that shapes him during his confirmation hearings. However, I heard no claims of identity politics surrounding discussions of his ability to be "fair" or administer justice "blindly."

Justices Roberts, Kennedy, Thomas, Scalia, and Alito are all Catholic. Alito clearly has ties to Opus Dei, and there is strong speculation that Scalia and Thomas do as well. Yet, I do not recall questions about their religion, or ties to this conservative Catholic organization coming up in regard to their roles as justices, or potential justices, to the Supreme Court. (Breyer and Ginsburg are Jewish, Souter is Episcopalian, and Stevens is Protestant - source)

Both Roberts and Alito are strong supporters of the theory of the President of the United States as a Unitary Executive. This is a theory has vast implications for the operation of our form of government. Yet, there they sit.

So where does the line of "identity politics" get drawn, and who gets perceived as "biased?" What about the issue of ideology politics and the Court? If one embraces an ideology of "right to life," or that all political power rests within the Presidency, or that corporations naturally trump people and workers, does that count as "bias," or just a "simple difference of opinion?" Can (and do) those Justices holding deep set ideologies put these aside in their interpretation of the law and the cases that come before them?

How about just simple conflict of interest? For example Scalia's involvement with Bush/Cheney and the SCOTUS deciding to block any further challenges to Florida's vote in the 2000 election?

Ah yes, inherently fair and unbiased indeed. The issue of potential bias seems to only arise if one is not a white male. If that does not throw a flag for folks about how racism and sexism are coded into the debate, then I do not know what would.

"Blind" Justice

On to the "blindness" of justice. This is embodied, and alluded to, in the ongoing circular argument, in the statue of Lady Justice. She stands holding scales and a sword, and is blindfolded (she was also "draped" by Ashcroft because he thought the statue indecent). I have now heard numerous times that Lady Justice embodies the "western tradition of justice."

Regardless, the issue of "blindness," and therefore "fairness," is a central question for all of us. What is morphed within the "debate" across the board is how one's status impacts one's "blindness."

Blindness in this context is an interesting concept. Does it mean that one does not acknowledge the impact of differences, or that they do not exist? Does it mean that the law, and decisions of the Courts, are applied regardless of status of the litigants? Does it mean that one should ignore that the impact of legal judgements which may actually advantage some while disadvantaging others - in other words, the outcome of the legal decision is "not fair."

Should there be an acknowledgement that this society has been, and continues to be, embedded with inequality based upon a number of group statuses (sex, race, orientation, age, ethnicity, social class, ability, etc.)? Further, that these statuses are experienced by individuals, but that they are applied to the entire status group? Further, that this structuring privileges some groups while disprivileging other groups, and is often reflected in the embedded biases not just of the society, but of the laws? And even further still, that living through these various structurings actually presents individuals and the groups to which they belong with different experiences of reality?

Let me offer you a non-legal example. Pundits. and social service planners came up with the idea of replacing the foodstamp voucher-type system with a "debit card" system. It was believed that such a system would be cost effective (saving mailing costs and being able to be renewed electronically), and would remove some of the social stigma of using foodstamps. Not discussed (apparently) and one of those unspoken assumptions, was that "everyone" was familiar with debit/credit cards.

A test of the program was run in New York City. Foodstamp recipients received their new food debit cards in the mail. Very shortly, foodstamp offices were being overrun with people wanting to know where their foodstamps were. A number had discarded the cards, all who showed up had no idea how to use them. The originators of this innovation were stunned. What was up with this? They had never thought about the fact that many of the people receiving foodstamps lived within a cash-based society and did not have even bank accounts much less debit or credit cards. It never occurred to them that knowledge of ATM and checkpoint systems might not be common knowledge.

Why did they not know this? Because such experience and knowledge was such an integral part of their world that they thought it was just "common knowledge." These were not folks who were deliberately classist or racist. In fact, they were trying to address some stigma issues with their decision. However, the socially structured reality that they lived in was quite different than that of most food stamp recipients.

So what does representation from diverse groups within our organizations, communities, society, and yes - the Supreme Court of the United States mean? It does not mean that "those people" all have an agenda, or are contaminated by "identity politics." It does mean that people coming from different realms of our society bring understandings and different perspectives with them. "Different" including the dominant group(s) understandings and experiences.

The white male Justice is no more neutral or unbiased than the Justice who is not white or male. If we are to attribute agendas, then we could equally argue that the white male Justice has an agenda as well - that of blindly reinforcing the structured inequality and biases of the society in which they reside.

That last sentence likely raises the blood pressure of many reading it. So take a breath and ask if the assumption that a non-white, non-male Justice should be labeled as inherently biased is any different an assumption - or any less of an insult.

Note

A brief examination of Lady Justice is instructive.

The presence of Lady Justice (or Blind Justice) is ubiquitous in U.S. courts. This is actually a statue of the Greek Goddess Themis (so one would think that some folks would have a problem with this). Regardless, if we look up "Themis" in Wikipedia we find:

"Themis is an ancient Greek goddess. She is described as "of good counsel", and is the embodiment of divine order, law, and custom. Themis means "law of nature" rather than human ordinance, literally "that which is put in place", from the verb τίθημι, títhēmi, "to put". To the ancient Greeks she was originally the organizer of the "communal affairs of humans, particularly assemblies".[1] Moses Finley remarked of themis, as the word was used by Homer in the 8th century, to evoke the social order of the 10th- and 9th-century Greek Dark Ages: Themis is untranslatable. A gift of the gods and a mark of civilized existence, sometimes it means right custom, proper procedure, social order, and sometimes merely the will of the gods (as revealed by an omen, for example) with little of the idea of right.[2]" BUT "Themis occurred in Hesiod's Theogony as the first recorded appearance of Justice as a divine personage. Drawing not only on the socio-religious consciousness of his time but also on many of the earlier cult-religions, Hesiod described the forces of the universe as cosmic divinities. Hesiod portrayed temporal justice, Dike, as the daughter of Zeus and Themis (daughter of Uranus and Gaia). Dike executed the law of judgments and sentencing and, together with her mother Themis, carried out the final decisions of Moira. For Hesiod, Justice is at the center of religious and moral life, who, independently of Zeus, is the embodiment of divine will. This personification of Dike will stand in contrast to justice viewed as custom or law, and as retribution or sentence. [5]"

This is indeed interesting, because Themis ruled over traditions and mores, and Dike was actually the rule of law as we understand it. This may actually explain a lot about how some see the role of the courts and the Supreme Court in particular.