May 26, 2009
The gay verdict on Sotomayor
Posted by: Chris
Little to none of the initial reaction to President Obama's nomination of Sonia Sotomayor to the Supreme Court has focused on gay rights issues, largely because her own judicial record is apparently void on the subject. That said, there are aspects to her selection that speak to the limits of identity politics, both for the GLBT left and, in opposition, on the conservative right.
Since the resignation announcement by Justice David Souter -- himself a lifelong bachelor long rumored to be gay -- some gay rights advocates have voiced their hopes that the president would pick the first-ever openly gay nominee to the high court. But if news accounts have been accurate, neither of two lesbian Stanford law professors -- Kathleen Sullivan and Pamela Karlan -- made Obama's list of top four possibilities.
For many of the same reasons that the Gay & Lesbian Victory Fund advocates for openly gay legislators, cabinet secretaries and the like, there would no doubt be enormous symbolism to an openly gay or lesbian justice, in addition to the inclusion of that person's unique life experiences into the mix of judicial viewpoints. But the room for influence from gay or lesbian life experiences on a jurist is a good deal more limited than for the more actively political and policy-making branches of government.
And why I don't know much about Karlan -- except that her record had a number of political minefields -- I'm not convinced that Sullivan is the ideal "openly gay" candidate. Sullivan, a former Stanford Law dean and Harvard law prof, was deeply closeted during my years in school -- which overlapped as well with President Obama's years there.
Despite her participation on the brief in the (failed) attempt to overturn Georgia's sodomy law, Sullivan said nothing helpful or otherwise about her own life during a time of energetic campus activism around "faculty diversity" and the absence of a single openly gay professor. All in all, it's not greatly disappointing and certainly unsurprising, that the president did not select an openly gay nominee.
On the other hand, conservatives are already in a lather about Sotomayor as "judicial activist" who they claim will "legislate from the bench." In support they cite not to her actual record as an appeals court judge on the Second Circuit, but to a YouTube moment where she jokes offhandedly at a law school symposium about whether federal appellate judges "make policy":
Outside the political arena, anyone half-serious as a lawyer or judicial observer will acknowledge that the circuit courts -- which are more often than the U.S. Supreme Court the venue of last resort for litigants -- unavoidably "make law" as they intepret the vagueries of legislative statutes and judicial precedents. (Sotomayor also followed up her remarks by saying she was not "promoting" or "advocating" policy-making from the bench.)
A second example lighting up the right is a bit more troubling on its face. In prepared remarks at Berkeley, Judge Sotomayor suggested that the unique life experiences of a Latina female jurist would result in "better conclusions"
[O]ur gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement.
First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.
On the one hand, Sotomayor's suggestion that ethnicity and gender are somehow determinative of the "richness of life experiences" represents the tired, ugly side of identity politics, which forgets the rhetorical commitments to equality in favor of elevating the lives of minorities in importance (or "richness") over those in the majority.
On the other hand, conservatives actually have little to complain about here. Those of us paying attention to the debate over gay rights, both in the legislature and the judiciary, have heard ad nauseum about how private religious values are absolutely relevant to making and interpreting law. Beyond that particular hypocrisy, Sotomayor's comments are aimed in the right direction, at least to the extent that a diversity of life experiences on any court, much less the nation's highest court, can only add to the decision-making process.
Doubters should recall the difference between Justice Byron White, who suggested for the court's majority in Bowers vs. Hardwick that it was "facetious at best" to compare gay relationships to heterosexual-led families, with the contrary language of Justice Anthony Kennedy in Lawrence vs. Texas, which overruled Bowers and struck down the nation's sodomy laws. Reading Justice White's opinion, it was abundantly clear that he had no personal relationships with same-sex couples. The swing vote in that 5-4 decision, Justice Lewis Powell, said later that the Bowers vote was his biggest regret, and one of Powell's law clerks was closeted. Kennedy's familiarity with the lives of gay people and same-sex relationships similarly came through in his Lawrence opinion.
We will no doubt all be learning more about Judge Sotomayor in the days and weeks to come, including the context of her most incendiary comments, and whether they are in fact reflected in her actual judicial philosophy, the votes she has cast from the bench, and the opinions she has authored. In the meantime, she appears to be an impressive selection destined for confirmation.
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