Like many others, I was disturbed by the comments of Sonia Sotomayor, the new Associate Justice-designate of the U.S. Supreme Court, in a speech at Berkeley eight years ago:
Of her two objections, Sotomayor’s first is irrelevant, since the wisdom required to decide a case, regardless how universal its definition, will be narrowed to the particulars of the case and the specific law that applies to it. It is her second objection that causes some readers to boggle. The remark is not taken out of context. An attention to sex and ethnicity is swirled through the speech like chocolate in ice cream. Nine years since Ruth Bader Ginsburg was named, “we are waiting for a third appointment of a woman”; ten years since Clarence Thomas, and still no “second minority, male or female, preferably Hispanic, to the Supreme Court.” Sotomayor spends a great deal of time reviewing the percentages of women and Hispanics:
It must fall to others to explain why (in the words of Brooks Adams) “nothing is so fatal to the principle of order as inequality in the dispensation of justice.” My concern is only with the hypertrophy of identity, of which Sotomayor is herself merely representative.
In his brilliant short essay “Keep Your Identity Small,” the programming language designer Paul Graham holds that “people can never have a fruitful argument about something that’s part of their identity. By definition they’re partisan.” To insist upon determining questions as a “Latina woman” is inevitably to adopt an axiological language (“better conclusion,” “preferably Hispanic”), because it moves personal and social associations and interests ahead of any rational methodology. It may even be true, as Sotomayor quotes Minow (see above) as saying, that “there is no objective stance but only a series of perspectives—no neutrality, no escape from choice in judging.” But it is quite another thing to make a self-conscious virtue out of what may be an inescapable vice attaching to the human condition. Because all human beings put on weight and go soft around the middle as they grow old, I should celebrate fat?
In plain fact, every person faces a decision—whether to exaggerate his identity or (in Graham’s words) to keep it small. As Graham explains, “If people can’t think clearly about anything that has become part of their identity, then all other things being equal, the best plan is to let as few things into your identity as possible.” Clear thought in all disciplines, not just the law, requires the shrinkage and not the expansion of self—and the abandonment of partisanship.