SOTOMAYOR’S NOMINATION: Identity Politics Characterizes National Discussion

A. BARTON HINKLE If you see a lot of people walking around in neck braces in the next few days, don't be surprised. Most of them probably got whiplash trying to process the hoopla surrounding So nia Sotomayor's nomination to the Supreme Court.

From all the celebratory hullaballoo, one might conclude that the most important aspect of the nomination is that it breaks down barriers. And it certainly was heartwarming to see the nation's first black president standing beside the woman who will almost certainly be come the nation's first (or, perhaps, second -- see below) Hispanic Supreme Court justice. Gotta love progress. Sotomayor's life history (raised by a single mom, inspired by Nancy Drew) also is heartwarming in its own right. As Janet Murguia of the National Council of La Raza said, it "personifies the American dream for so many Latinos in this country."

Of course, so did the story of Miguel Estrada -- a Honduran immigrant who came to the U.S. at 17 and lived with his single mom while he mastered English. Estrada went on to graduate magna cum laude from Columbia, and then magna cum laude from Harvard Law (where he, like the current president, was editor of the law review).

Yet when President Bush nominated him to the D.C. Court of Appeals several years ago, identity politics and inspiring biography mattered not a whit. Senate Democrats -- fearful because "the White House seems to be grooming him for a Supreme Court appointment," according to a staff report -- subjected the conservative Estrada to a seven-month-long filibuster. Liberal interest groups combed through his memos looking for dirt. Estrada had received an exemplary rating from the American Bar Association and is widely considered a brilliant legal mind. But his nomination was toast.

Many of the Democrats who are now patting their party on the back for breaking down barriers went to great lengths -- the first-ever filibuster against a circuit-court nominee -- to stop an extremely well-qualified Latino before he got too far. The current celebration of barrier-breaking rings just a trifle hollow, when ideology so thoroughly trumped identity in Estrada's case.

IDENTITY SEEMS important to Sotomayor, whose now-infamous 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" has received deserved scrutiny. (Nearby, Ellen Goodman says the single sentence was only one sound bite from a longer speech. True. But George Allen's "macaca" was only a single word. Sometimes little things reveal a lot.) In the same 2001 speech, Sotomayor suggested that "whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging."

This talk of inherent differences is dangerously close to the speculation that cost Larry Summers his presidency of Harvard. In that instance, Summers was expressing not a hope but merely a hypothesis -- one that he said he found personally disturbing -- about the distribution of innate mathematical ability among men and women at the far-right end of the bell curve. Perhaps he should have cited Sotomayor to support the notion that men and women might have different strengths in different areas. It wouldn't have saved his job, but it would have added nuance to the discussion.

Sotomayor's comments also call to mind the remarks by Marilyn Quayle at the 1992 Republican National Convention, asserting that most women did not wish to be liberated from their "essential natures" as caregivers and nurturers. Quayle was roundly mocked for that. Yet now, we are told, Sotomayor will bring "empathy" to the high court precisely because she is a woman and a minority. We've come a long way, baby . . . maybe.

LIBERALS HAVE mischaracterized conservative objections to the "empathy" consideration as code for liberal judicial activism. But that is not the issue.

Empathy is a philosophically neutral trait that could produce conservative rulings as easily as liberal ones; it all depends on where one's empathy lies. Empathy for defenseless babies motivates thousands of anti-abortion crusaders. Empathy for the victims of crime might lead a jurist to reject the exclusionary rule that keeps evidence of guilt out of court. Empathy for the devout might make a judge more inclined to tolerate prayer in school or the teaching of creationism.

And then there is empathy for the small homeowner who is steamrolled by government power. Viz.: Suzette Kelo, who lost her modest house in New London, Conn., because city officials wanted the larger tax revenue they would get when they turned the land over to a giant pharmaceutical company. The Supreme Court's dissenting conservative justices showed far more empathy for the little guy in the Kelo ruling than did the liberal bloc -- including David Souter, who wrote the majority opinion. (Sotomayor has been nominated to fill the seat Souter soon will vacate.)

But judges are supposed to interpret the law, not their feelings. The Kelo decision was egregious because it gutted the takings clause of the Fifth Amendment -- not because of the particular result it produced. Had the result been consistent with the Constitution, it would have been unfortunate but necessary. As the late Supreme Court Justice Benjamin Cardozo once said, "consequences cannot alter statutes."

Some say Cardozo actually might have been the first Hispanic Supreme Court Justice, because his forebears are thought to have hailed from Portugal. Others say the Portuguese don't count. More germane to the current discussion is the fact that Cardozo was named to the high court by Herbert Hoover, a conservative Republican -- and conservative Republicans don't break down racial barriers. Just ask Miguel Estrada.

My thoughts do not aim for your assent -- just place them alongside your own reflections for a while.

--Robert Nozick.

Contact A. Barton Hinkle at (804) 649-6627 or .