Letters to the Editor
Readers write about Obama's nominee for the Supreme Court.
There is such a thing as 'identity justice'Skip to next paragraph
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In regard to the May 26 editorial, "Does Sotomayor practice identity justice?": I agree that Sonia Sotomayor should place an ideal of impartial justice as the first of her principles in judicial rulings. Let her mention her family less, and her work more.
However, the accusation of "identity justice" is an extraordinary one. It glosses over the difficulty of walking the fine line in our country between our ideals and their practical implementation. Was that justice impartial which for years treated women as chattel – the property of their husbands, rather than independent beings with rights and beliefs? Was that justice impartial which issued rulings based on the assumption that African-Americans were lesser beings than whites?
Perhaps Ms. Sotomayor could be understood to mean that a woman, who knows herself to be a principled being with the desire to do right, would have ruled more impartially in some cases than some of her white male predecessors who were influenced by their belief that women could not reason properly. Further, why is her approach to the law any more "identity justice" than those on the right who believe that their identities and beliefs should be reinforced by the court's rulings?
My reading of Judge Sotomayor's speech does not lead to a conclusion that impartiality is a "mere" aspiration, to quote the Monitor's term. Rather, she addresses the difficulty of rising above one's personal, ethnic, and cultural background in order to arrive at a just and impartial decision.
The Monitor is also sadly mistaken to assert that "upholding a constitutional principle" trumps all other bases for rendering a judicial decision. Name a constitutional principle that has never been subject to interpretation or nuanced debate. Judging would be easy if constitutional principles were immutable with meanings readily agreed to by all citizens. But they are not, which is exactly Ms. Sotomayor's point.
This editorial states that, "Identity politics may be a necessary part of US politics. But there is no such thing as identity justice."
I beg to differ. Supreme Court decisions have been replete with just such identity justice. The best examples are the infamous Dred Scot decision and also the decisions upholding segregation
While the Constitution should certainly remain a fixed beacon, that it may safeguard critical rights without regard to the dynamic flux of a society, judges should not necessarily be so fixed. The Supreme Court serves as a brake on shifting legal tidal surges to which the other branches of the judiciary may be more subject. However, this does not mean they are immobile or unable to interpret the same Constitution in greatly different ways.