The Living Consequences

CNN is reporting that President Obama has chosen Judge Sonia Sotomayor as his nominee to fill Associate Justice David Souter’s seat on the U.S. Supreme Court.

Judge Sotomayor’s nomination will inevitably raise the usual issues of politics and legal philosophy, as well as questions about “identity politics.” The latter, of course, refers in this context to the practice of taking into consideration the identity of potential nominees as members of historically disadvantaged groups, in order to compensate for the structural barriers which have caused these groups to be dramatically under-represented on the Court.

The issue of “identity politics” will probably be raised more sharply with this nominee than with others, for the simple reason that her selection involves multiple identities and another “first” for the Court: Judge Sotomayor, of the U.S. Court of Appeals for the Second Circuit, would be the first Hispanic justice and only the third female justice to serve on the Supreme Court.

I think it will be healthy for the nation to have another opportunity to discuss the fact that historically disadvantaged groups are still not represented in anywhere near their natural numbers in the highest ranks of most institutions and professions, as well as the pros and cons of using group affiliation as a selection criterion in order to address that imbalance. The president seemed to raise that issue early in the selection process when he established “empathy” as an important factor in his decision-making, which was widely interpreted as, in part, a way of explaining the importance of weighing a judge’s gender, racial, or other identity along with more traditional professional qualifications.

Interestingly, the New York Times is reporting that the other candidates on President Obama’s “short list” this weekend were all women: Judge Diane P. Wood of the U.S. Seventh Circuit, U.S. Solicitor General and former Harvard Law School dean Elena Kagan, and U.S. Secretary of Homeland Security and former Arizona governor Janet Napolitano. This fact would seem to confirm speculation that the president was particularly interested in appointing a woman to the Court, and makes it unlikely that considerations of gender and ethnicity were not a major factor in his decision.

None of this, of course, should distract from Judge Sotomayor’s record and qualifications for the job, as well as her compelling personal story. Sotomayor is a first-generation American who grew up in an immigrant family in a housing project, lost her father as a child and was raised by her mother. She has devoted her professional life to public service, serving as a prosecutor, trial and appellate judge, and is reported to have very little money.