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Op-Ed: Identity Politics: A Double-Standard for Supreme Court Nominees

July 17, 2009 -- San Francisco
-- Judge Sonia Sotomayor will likely be the next Supreme Court Justice of the United States.  When confirmed, Judge Sotomayor’s vast judicial, legal and academic accomplishments will be eclipsed by two important facts, one unprecedented.  Judge Sotomayor will be the first U.S. Supreme Court justice of Latino heritage, and only the third female justice since the high court was established 220 years ago by men of European descent.  But how Judge Sotomayor ascended to our country’s highest judicial position and what she had to say, or not say, during her Senate confirmation hearings is a telling tale of how much farther we still need to come as a country in embracing our diversity, particularly on the bench.

In response to Senators’ criticisms about past speeches she gave illustrating the human side of judicial decision-making, Judge Sotomayor carefully and repeatedly testified to the Senate Judiciary Committee about her ability to coldly apply the law to a set of facts.  In doing so, Judge Sotomayor successfully sidestepped discussions on how her rich Puerto Rican heritage has influenced her career as a Latina lawyer and judge.  A newspaper headline best encapsulated her testimony and sentiment: “Nominee says Identity Wouldn’t Distort Decisions” (New York Times online edition, July 15, 2009).

Her reticence to cite to her gender or heritage as factors to be embraced in her Senate confirmation hearings contrasts markedly with Justice Alito’s confirmation testimony.  During his opening statement to the Senate Judiciary Committee, Justice Alito, openly and unapologetically emphasized how his identity as an Italian-American influenced his judicial decision-making:

“When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.”

Judge Sotomayor’s reluctance to speak about her gender or heritage is likely a calculated move to ease through the Senate confirmation process without ruffling the feathers of some U.S. Senators - the same ones who lauded Justice Alito and his Italian heritage during the Supreme Court confirmation process.  But to downplay Judge Sotomayor’s identity or more dangerously, to consider it a threat, not only reflects hypocrisy and a double-standard for Supreme Court nominees, but runs counter to the greatness of this country, and the even handed role the rule of law plays in our daily lives given our rich diversity.

We all should be encouraged to celebrate and embrace Judge Sotomayor’s Puerto Rican roots.  The sum of our diverse backgrounds equals the greatness of this country, singularly distinguishing us from the rest of the world.  Our diverse backgrounds, as then Judge Alito noted unabashedly, play an important part in who we are and how we see the world.  And undoubtedly, how the world sees us.

Russell S. Roeca
President, The Bar Association of San Francisco

Kirain C. Jain
President of the South Asian Bar Association of Northern California and
Treasurer, Barristers Club of The Bar Association of San Francisco

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