Sotomayer: Identity Politics Again

The barrier to justice for all is stymied by the confines of identity politics.

The Supreme Court recently ruled against the judgement of Sotomayer's federal appeals court's decision against the city of New Haven in a reverese discrimination case.

Sotomayer's judgement against the firefighters mirrors how Justice Souter would have voted.

The outcome of the case is said to have no discernable impact at the Sotomayer hearings.


The Supreme Court was split, voting 5 to 4:
Chief Justice John Roberts
Justice Anthony Kennedy
Justice Antonin Scalia
Justice Clarence Thomas
Justice Samuel Alito

The four who dissented:
Justice Ruth Bader Ginsburg
Justice John Paul Stevens
Justice David Souter (who retires at the end of today)
Justice Stephen Breyer

Interesting to note that Justice Scalia, a conservative, joined the liberal justices in a 5-4 decision on the case Cuomo v. The Clearing House Ass'n. Reuters says the decisions "allows NY attorney general probe" of mortgage banks. This case did not involve identity politics.

Identity does matter-"In a recent interview with The New York Times, Justice Ruth Bader Ginsburg said that the current makeup of the high court — where she is the only current female member — "just doesn't look right in the year 2009.""I feel great," she said of her anticipation of Sotomayor's confirmation, "that I don't have to be the lone woman around this place."

"Having Ginsburg and the now-retired Justice Sandra Day O'Connor — who broke the gender barrier in 1981 — on the court had "an immediate influence on gender discrimination cases," says Supreme Court historian Lucas Powe Jr., a University of Texas law professor and author of the recent The Supreme Court and the American Elite.

Powe dismisses the notion that a justice's identity could be left out of his or her decisions."It would be ridiculous," he says, "to imagine that one's identity can be stripped out. We are who we are."But just how much identity — Sotomayor's identity — would or should play out on a high court dominated since its founding by white men will get a thorough vetting this week.

And the Hispanic community will be watching its history play out."This is of tremendous significance," Rivera says. "It's about all of us feeling that the court has integrity and reflects our lives and who we are."
besternews.com


George Will writes, "Democrats compounded confusion by thinking of the court as a representative institution. Such personalization of the judicial function subverts the rule of law. "townhall.com

If the conservative majority didn't vote in lock-step than there would be some credence to this remark.

In 2007 the Washington Post, "THE SUPREME COURT last week concluded its first full term with President Bush's two nominees in place, and the outcome was simultaneously unsurprising and disappointing. The 2006-07 term was unsurprising because Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. emerged as the reliably conservative justices that we expected them to be. There was little doubt that Justice Alito's replacing Sandra Day O'Connor would shift the court measurably to the right. But the term was also disappointing because of the unvarying, lock-step nature of the voting patterns of the two newest ...
Washington Post, July 3, 2007

Sotomayer is called a reverse racist by those who oppose her confirmation. The New York Times writes, "Of the 110 people who have served on the court, only four were not white males. Every president over the last generation has at least flirted with the temptation to name a “first” — or at least a second or third."From a single speech she gave at the law school at the University of California, Berkeley, in 2001, which has attracted critisim, she said “our gender and national origins may and will make a difference in our judging.”“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,” she said.

In some of the justices rulings related to identity politics, it has been said that in 20 years or more their rulings might have been different.

Is it fair to have a court that is more representative of our nation?

As we consider at some point in the future the white population will not be the majority, and the court will be more diverse, will we then see more reverse discrimination cases?