Of Race, Gender and Justice
This week I was asked to testify before the Senate Judiciary Committee regarding
the nomination of Judge Sonia Sotomayor to the Supreme Court. Here's what I
I testify today not as a wise Latina woman, but as an American who believes that
skin color and national origin should not determine who gets a job, promotion,
or public contract, or who gets into college or receives a scholarship.
My message today is straightforward. Do not vote to confirm Judge Sonia
Sotomayor. I say this with some regret, because I believe Judge Sotomayor's
personal story is an inspiring one, which proves that this is truly a land of
opportunity where circumstances of birth and class do not determine whether you
Unfortunately, based on her statements both on and off the bench, I do not
believe Judge Sotomayor necessarily shares that view. It is clear from her
record that she has drunk deep from the well of identity politics. I know a lot
about that well, and I can tell you that it is dark and poisonous. It is, in my
view, impossible to be a fair judge and also believe that one's race, ethnicity,
and sex should determine how someone will rule as a judge.
Despite her assurances to this Committee over the last few days that her
statement 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" was simply "a rhetorical flourish that fell flat," nothing could be
further from the truth. Judge Sotomayor's words weren't uttered off the cuff.
They were carefully crafted, repeated — not just once or even twice — but at
least seven times over several years. If Judge Sotomayor were a white man who
suggested that whites or males made better judges, we would not be having this
discussion because the nominee would have been forced to withdraw once those
words became public.
Judge Sotomayor's offensive words are a reflection of her much greater body of
work as an ethnic activist and judge. Identity politics is at the core of who
this woman is. And let me be clear here, I am not talking about the
understandable pride in one's ancestry or ethnic roots, which is both common and
natural in a country as diverse and pluralistic as ours.
Identity politics involves a sense of grievance against the majority, a feeling
that racism permeates American society and its institutions, and the belief that
members of one's own group are victims in a perpetual power struggle with the
From her earliest days at Princeton University and later Yale Law School to her
12-year involvement with the Puerto Rican Legal Defense and Education Fund to
her speeches and writings, including her jurisprudence, Judge Sotomayor has
consistently displayed an affinity for such views.
As an undergraduate, she actively pushed for race-based goals and timetables in
In her senior thesis, she refused to identify the U.S. Congress by its proper
name, instead referring to it as the "North American Congress" or the "Mainland
During her tenure with the Puerto Rican Legal Defense and Education Fund, she
urged quota-seeking lawsuits challenging civil-service exams.
She opposed the death penalty as racist.
She made dubious arguments in support of bilingual education and tried to equate
English language requirements with national origin discrimination.
As a judge, she dissented from an opinion that the Voting Rights Act does not
give prison inmates the right to vote.
Finally, and perhaps most dramatically, she showed in the New Haven firefighters
case a willingness to let her policy preferences guide her, ruling that it was
perfectly lawful for the city there to throw out the results of a promotion exam
because those who did well on it were the wrong color.
Although she has attempted this week to back away from her own words — and has
accused her critics of taking them out of context — the record is clear:
Identity politics is at the core of Judge Sotomayor's self-definition. It has
guided her involvement in advocacy groups, been the topic of much of her public
writing and speeches, and influenced her interpretation of law.
There is no reason to believe that her elevation to the Supreme Court will
temper this inclination, and much reason to fear that it will play an important
role in how she approaches the cases that will come before her if she is
confirmed. I therefore strongly urge you not to confirm Judge Sotomayor as an
associate justice of the Supreme Court.