Sonia Sotomayor had bad timing. If she’d entered college in the late-1950s or early-1960s, she would have been surrounded by an ethos that encouraged smart young ethnic kids to assimilate. If she’d entered Princeton and Yale in the 1980s, her ethnicity and gender would have been mildly interesting traits among the many she might possibly possess.
But she happened to attend Princeton and then Yale Law School in the 1970s. These were the days when what we now call multiculturalism was just coming into its own. These were the days when the whole race, class and gender academic-industrial complex seemed fresh, exciting and just.
There was no way she was going to get out of that unscarred. And, in fact, in the years since she has given a series of speeches that have made her a poster child for identity politics. In these speeches, race and gender take center stage. It’s not only the one comment about a wise Latina making better decisions than a white male; it’s the whole litany. If you just read these speeches you might come away with the impression that she was a racial activist who is just using the judicial system as a vehicle for her social crusade.
And yet her history and conversations with her colleagues suggest this is not the main story. If you look at the whole record, you come away with the impression that Sotomayor is a hard-working, careful-though-unspectacular jurist whose primary commitment is to the law.
When Sotomayor left Yale, she didn’t take the route designed to reinforce her ideological dispositions. She became a prosecutor with District Attorney Robert Morgenthau in Manhattan. She told The Times in 1983 that in making this decision, she faced “a tremendous amount of pressure from my community, from the third-world community at Yale. They could not understand why I was taking this job.”
In the years since, she has not followed the easy course. More than any current member of the Supreme Court, she worked her way up through the furnace levels of the American legal system. And when she reached a position of authority, she did not turn herself into an Al Sharpton in robes.
She is quite liberal. But there’s little evidence that she is motivated by racialist thinking or an activist attitude.
Tom Goldstein of Scotusblog conducted a much-cited study of the 96 race-related cases that have come before her. Like almost all judges, she has rejected a vast majority of the claims of racial discrimination that came to her. She dissented from her colleagues in only four of those cases. And in only one of them did she find racial discrimination where they did not. Even with what she calls her “Latina soul,” she saw almost every case pretty much as they did.
When you read her opinions, race and gender are invisible. I’m obviously not qualified to judge the legal quality of her opinions. But when you read the documents merely as examples of persuasive writing, you find that they are almost entirely impersonal and deracinated.
My Times colleague Adam Liptak has reported that Sotomayor’s opinions reflect “diligence, depth and unflashy competence.” They are, as he noted, technical, incremental and exhaustive.
To my eye, they are the products of a clear and honest if unimaginative mind. She sticks close to precedent and the details of a case. There’s no personal flavor (in the boring parts one wishes there were). There’s no evidence of a grand ideological style or even much intellectual ambition. If you had to pick a word to describe them, it would be “restraint.”
Looked at in her totality, Sotomayor seems to be a smart, careful, hard-working judicial professional, who along the way picked up a patina of 1970s race-, class- and gender-consciousness.
It’s interesting to compare Sotomayor’s thinking with Barack Obama’s. On the grand matters of race in America, they are quite different. Sotomayor has given a series of speeches arguing that it is not possible or even desirable to transcend our racial or gender sympathies and prejudices. During the presidential campaign, Obama gave a speech in Philadelphia arguing for precisely that, calling on America to move beyond the old categories and arguments.
Sotomayor sometimes draws a straight line between ethnicity, gender and behavior. Obama emphasizes our multiple identities and the complex blend of influences on an individual life.
Yet in practice, they do have a lot in common. In practice, Sotomayor is a liberal incrementalist. Her careful opinions embody the sort of judicial minimalism that Obama and his aide Cass Sunstein admire most.
In short, Sotomayor’s career surpasses the crude categories she sometimes articulates. Despite the ideas she picked up while young, she has, over many years, chosen to submit herself to the discipline of the law, and she has not abused its institutions. I hope she’s confirmed.
Comment: It's not really complimentary, but it's the closest thing to reasonable I've seen on the right so far.