Editor’s Note: In a forum published in the May 25 edition of The Nation, three legal scholars discussed Federal Judge Sonia Sotomayor’s judicial style and potential impact on the US Supreme Court.
Ian Haney Lopez
(John H. Boalt Professor of Law, University of California, Berkeley): Many scoff at the clamor for President Obama to nominate a woman to the Supreme Court or a minority or someone from a non-elite background. They dismiss in particular the enthusiasm of ostensible identity commissars who seem to support Judge Sonia Sotomayor, the daughter of working-class Puerto Ricans, as the triple threat of identity candidates.
Yet identity does matter–if indirectly. Yes, the judicial apotheosis of someone affiliated with disfavored groups would help repudiate negative stereotypes (it turns out, Latinas can do more than clean houses). True, such ascension would add to the law’s legitimacy (further burnishing the belief in the Americano Dream). All fair enough. But at stake is a seat on the Supreme Court; far and away the most important criterion for selecting among various technically superb candidates must be intellectual and moral vision.
Which is the key reason identity matters. The central point is not to provide diverse role models, and it’s certainly not to maximize differences of every stripe. The essential thrust of identity politics is to accord special consideration to race, gender and class (plus sexual orientation and disability)–because these constitute core, persistent, unjust hierarchies. Biography is not intellectual destiny; group membership is not epistemological fate. Nevertheless, ties to the central marginalized identities in American life surely encourage sustained engagement with inequality. Judge Sotomayor deserves our support not because of who she is but because of what she thinks–especially about the most injurious forms of structural injustice in the United States: race, gender and class.
(dean, University of California, Davis, School of Law): After hours of mental gymnastics, I simply could not narrow the field to a single “ideal” Supreme Court nominee. But I offer two potential nominees who would make us all proud and reflect the life experiences, as well as the commitment to the rule of law, of President Obama. Both are highly intelligent and well qualified. Both have varied legal careers that offer the breadth of real-life knowledge that we need in a Supreme Court justice. Both made the most of humble beginnings. Both would add valuable perspective and insight to the Court.