What the Fight over Sotomayor Also Says

Supreme Court nominee Sonia Sotomayor testifies on Capitol Hill in Washington, Tuesday, July 14, 2009, before the Senate Judiciary Committee.
Charles Cooper is the Opinions Editor of CBS

During its first few days, the Senate Judiciary Committee's hearing on Sonia Sotomayor's qualifications for a seat on the Supreme Court have proceeded in predictable fashion, with Democrats warm and laudatory, and Republicans politely brittle and suspicious.

Anyone hoping for something resembling the political pyrotechnics that attended Robert Bork in 1987 will be disappointed. Barring a really bad hair day leading to a Sotomayor meltdown, everyone already knows the denouement. The Republicans aren't wasting their time - they're making their points for the record, and using the opportunity to raise some important questions about constitutional law. But they know that the Democrats have the votes to pass President Obama's first Supreme Court justice whether they like it or not.

Out in the blogosphere, talk radio and cable television airwaves, however, her nomination has been cause for hyperventilation and angst. Writing in CNN's Web site, Abigail Thernstrom, the vice-chairwoman of the U.S. Commission on Civil Rights and an adjunct scholar at the American Enterprise Institute, suggested that Sotomayor's judgment was clouded by "ethnic determinism." Ann Coulter deemed Sotomayor to be "even crazier than Ruth Bader Ginsburg" while Rush Limbaugh dismissed her as a "reverse racist" and a "hack."

Some of this is the obvious left-right politics that flares up whenever a Supreme Court nominee gets vetted for confirmation. But in this case, the right is particularly uneasy about what this "wise Latina" has to say about race and ethnic identity. It's a legitimate question and one that goes to the heart of the larger American narrative.

To be sure, Sotomayor isn't just Sandra Day O'Connor with some salsa on the side. This self-described "Newyorican" revels in her heritage and sense of self. What she fondly recalls as her "Latina soul" is informed by happy meals of "arroz, gandules y pernil" (rice, beans and pork), the sound of meringue and loving visits with cousins and her extended family to her grandmother's house.

In a now much-quoted 2001 speech, Sotomayor recalled:

"My family showed me by their example how wonderful and vibrant life is and how wonderful and magical it is to have a Latina soul. They taught me to love being a Puertorriqueña and to love America and value its lesson that great things could be achieved if one works hard for it. But achieving success here is no easy accomplishment for Latinos or Latinas, and although that struggle did not and does not create a Latina identity, it does inspire how I live my life."

But after sharing the Kodachrome family moments, Sotomayor offered fodder to her critics when she attempted to discuss the powerful forces of class and race. She argued that American still clings to a "confused image of itself that is in perpetual tension" and presented a society in contradiction.

On the one hand, you have a country where ethnic diversity is a source of richness and personal pride. At the same time, we insist that everyone ignore those differences and instead promote the notion of a race and color-blind life - this is the important concept of equality before the law - even though, Sotomayor notes, we laud those very differences in other contexts.

Race and class still remain the two big political no-no's - even in America 2009, where the president is a biracial son of a hardly-wealthy African immigrant.

We are, supposedly, the great melting pot, a nation of immigrants (along with aboriginal and slave descendents). We left the ethnic hyphens behind after our forebears passed through Ellis Island to join on an equal footing the descendents of those who came over on the Mayflower. A single nation, and a single people: Americans.

But is that really the way we live? Every nation needs a founding myth, and ours has evolved in the last few decades. It probably speaks for a lot of Americans who grew up with textbooks that no longer describe America's ethnic and racial makeup.

Sotomayor failed to win over Republicans with her explanation of race and ethnic identity, but she was still quite right to suggest that American society still has not clearly figured out how to resolve those questions.
By Charles Cooper
Special to