Sonia Sotomayor's shameless repudiation in the Senate of her past statements on gender, race, and judging is not just hypocritical, it is a lost opportunity. The airing of her many speeches on identity politics and the law had produced another Ward Churchill moment: An idea that is outright mundane within the academy escapes its hothouse environment and shakes the public temporarily out of its stupor regarding university culture. Now, unfortunately, Sotomayor's bland denials that she ever meant what she said will allow the curtain to fall once more over the mad world of academic legal theory.
The claims that run through Sotomayor's speeches on identity and the law - that the ideal of colorblindness is "confused" and in conflict with the proper celebration of "diversity"; that the white, male world of law suppresses the distinct "voices" of minorities and women; that those "voices" are "rich[er]" and "better" than those of white males - are utterly unremarkable within the legal academy. They form the core of feminist legal theory and "critical race studies," the latter of which Sotomayor's alma mater, Yale Law School, celebrated just this April. These twin theories reject the ideal of neutral legal analysis in favor of an uninhibited embrace of self-engrossed identity cultivation. Their practitioners produce law-review articles exploring how their experiences with their own hair and other markers of racial or ethnic identity shaped their understanding of the law. They specialize in the manufacture and exploitation of pseudo-incidents of sexism and racism.
Sotomayor graduated from law school before feminist and race theory reached their zenith, but she appears closely familiar with that body of ideas. Her "Wise Latina" speech approvingly cites leading feminist theorists, such as Harvard's Martha Minow ("there is no objective stance but only a series of perspectives") and Yale's Judith Resnik ("to judge is an exercise of power"). The New Deal-era theory of Legal Realism, about which she was asked on Tuesday, is a far less relevant source of her pronouncements than are feminist and race studies.
For all their self-indulgent wallowing in narcissism, however, critical race studies and feminist jurisprudence do rest clumsily on some truths that conservative boilerplate about the law ignores. There is inevitably a great deal of ambiguity in the law. "Original intent" is a much more problematic concept than its acolytes admit. Language rarely produces single meanings. And yes, judges sometimes cannot avoid making "policy" when they are called upon to extend statutes or precedents to unforeseen situations. The discourse about the law that conservatives routinely serve up in confirmation hearings is facile. But it is equally facile - and far more dangerous - to replace a recognition of the complexity of judicial decision-making with the equation of gender and race with particular perspectives, not to mention with virtue and insight. Sotomayor's parroting of the academy's identity theorists presents a real risk that she consciously or unconsciously sees her role as bringing her allegedly unique Latina "voice" to the highest court of the land, despite her present protestations to the contrary.
Sotomayor will be allowed to wriggle out of her past statements with excuses that are even worse. To dismiss her embrace of feminist and race jurisprudence on the ground that she was merely speaking to students betrays a disregard for the maintenance of our legal culture. As Sotomayor undoubtedly understood at the time but now pretends to ignore, there is in fact no more important an audience than students; they are the guardians of our traditions and ideals.
But while Sotomayor will march on to the Supreme Court, law schools should not be allowed to duck their responsibility for the ideas that Sotomayor's nomination has brought belatedly into public consciousness. Anyone who found himself surprised by the ideology of Sotomayor's "Wise Latina" speech has not been paying attention. That ideology is available to anyone who cares to look and forms part of the understanding of the law with which law schools imbue their students. As usual, parents and alumni donors have been bankrolling an education about whose radical excesses they are clueless. It is time that they and the rest of us wake up.
By Heather MacDonald
Reprinted with permission from National Review Online