Letters to the Editor
Readers write about Obama's nominee for the Supreme Court.
There is such a thing as 'identity justice'
In regard to the May 26 editorial, "Does Sotomayor practice identity justice?": I agree that Sonia Sotomayor should place an ideal of impartial justice as the first of her principles in judicial rulings. Let her mention her family less, and her work more.
However, the accusation of "identity justice" is an extraordinary one. It glosses over the difficulty of walking the fine line in our country between our ideals and their practical implementation. Was that justice impartial which for years treated women as chattel – the property of their husbands, rather than independent beings with rights and beliefs? Was that justice impartial which issued rulings based on the assumption that African-Americans were lesser beings than whites?
Perhaps Ms. Sotomayor could be understood to mean that a woman, who knows herself to be a principled being with the desire to do right, would have ruled more impartially in some cases than some of her white male predecessors who were influenced by their belief that women could not reason properly. Further, why is her approach to the law any more "identity justice" than those on the right who believe that their identities and beliefs should be reinforced by the court's rulings?
My reading of Judge Sotomayor's speech does not lead to a conclusion that impartiality is a "mere" aspiration, to quote the Monitor's term. Rather, she addresses the difficulty of rising above one's personal, ethnic, and cultural background in order to arrive at a just and impartial decision.
The Monitor is also sadly mistaken to assert that "upholding a constitutional principle" trumps all other bases for rendering a judicial decision. Name a constitutional principle that has never been subject to interpretation or nuanced debate. Judging would be easy if constitutional principles were immutable with meanings readily agreed to by all citizens. But they are not, which is exactly Ms. Sotomayor's point.
This editorial states that, "Identity politics may be a necessary part of US politics. But there is no such thing as identity justice."
I beg to differ. Supreme Court decisions have been replete with just such identity justice. The best examples are the infamous Dred Scot decision and also the decisions upholding segregation
While the Constitution should certainly remain a fixed beacon, that it may safeguard critical rights without regard to the dynamic flux of a society, judges should not necessarily be so fixed. The Supreme Court serves as a brake on shifting legal tidal surges to which the other branches of the judiciary may be more subject. However, this does not mean they are immobile or unable to interpret the same Constitution in greatly different ways.
I find nothing wrong with this damping influence, but to suggest that Oliver Wendell Holmes should not have appreciated what it was like to be shot at as a young man being pursued by a railroad security guard and bring that experience to his judicial outlook ignores reality and ignores the fact that judicial review is not imprisoned in crystal.
Our Constitution and laws can't address every possible scenario, and so they've been designed to be interpreted and applied by judges, as well as by the legislative and executive branches of our government. Although judges must be impartial as between the parties to a case, they aren't supposed to stop being themselves, any more than jurors are supposed to forget who they are in deciding the most serious criminal cases, including those where the defendant's life may be at stake.
There is no one response to a legal situation, and that necessarily means that different judges may respond differently based on their backgrounds, experience, and philosophy. I haven't seen anything from Judge Sotomayor that indicates that she would stray from America's long tradition of having competent Supreme Court justices interpret the Constitution and the laws as they see them, and not as everyone else might see them.
This editorial conflates ideals with reality, putting forth the belief that society should be governed by "universal, timeless values."
As lovely as that sounds, the reality is that society is governed by people who interpret so-called universal, timeless values. If justice could be dispensed so dispassionately, the writers of our Constitution would have allowed for only one Supreme Court justice.
Judge Sotomayor's comments regarding identity and jurisprudence are nothing more than the acknowledgement that we are all different, and that we will all reflect those differences in our approach to the law. It stands to reason that a Latina woman, who has lived, and succeeded, in a white man's world comes to the bench with an advantage over a white male in reaching sound decisions that more fully approach those "universal, timeless values."
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