Thursday, May 28, 2009

Making identity large

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:

Justice [Sandra Day] 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 [Judith] 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 [sic] 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.Sotomayor was right to be unsure of the source, although she bungles the correction. Mary Jeanne Coyne (not Coyle), an associate justice of the Minnesota Supreme Court, told students in a panel discussion at the University of Minnesota Law School she disagreed that women justices bring a “woman’s perspective” to the bench, adding: “A wise old man and a wise old woman reach the same conclusion. In the vast majority of cases, it [the judge’s sex] will have no impact whatever” (New York Times, Feb. 22, 1991). Justice O’Connor quoted Coyne eight months later in the annual James Madison Lecture at the New York University Law School, giving rise to the incorrect citation (Washington Post, Nov. 23, 1991).

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:As of September 1, 2001, the federal judiciary consisting of Supreme, Circuit and District Court Judges was about 22% women. In 1992, nearly ten years ago, when I was first appointed a District Court Judge, the percentage of women in the total federal judiciary was only 13%. Now, the growth of Latino representation is somewhat less favorable. As of today we have, as I noted earlier, no Supreme Court justices, and we have only 10 out of 147 active Circuit Court judges and 30 out of 587 active district court judges. Those numbers are grossly below our proportion of the population. As recently as 1965, however, the federal bench had only three women serving and only one Latino judge. So changes are happening, although in some areas, very slowly. These figures and appointments are heartwarming. Nevertheless, much still remains to happen.“Less favorable,” “heartwarming”—on what grounds? What is astonishing is that Sotomayor treats the statistical categorization of judges by sex and ethnicity as self-evidently appropriate. And why? Because she conceives of the judiciary as a representative institution.

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.