The Monopoly on Impartiality

A few friends and readers have asked me to comment on the Sonia Sotomayor hearings. I’d love to offer some keen insights, but two things are holding me back: 1) Lindsay Graham’s comment that she’ll get the nomination, barring “a complete meltdown;” and 2) the subtle, yet increasingly salient fact that these hearings are excruciatingly boring.

To be honest, I don’t know much about Sotomayor beyond her general life story and the conservative backlash over the now infamous “wise Latina” comment. I don’t know many specifics about her record beyond the Ricci case, and I’ve never read any of her writings or heard any of her speeches in full.

That said, two things struck me as I watched the hearings: First, Sotomayor has a deft knowledge of the law. My lawyer readers might disagree, but in the eyes of the common social scientist, she obviously knows her stuff. She seemed to have a clear, pointed answer for every question. She didn’t let any senator challenge her expertise, nor did she let anyone bully her into a corner. She let her legal competence speak for itself.

Second, she has a remarkable grasp of the English language—and I don’t mean that in reference to her immigrant background. As the senators fumbled over their prepared questions, speaking in shoddy grammar, Sotomayor spoke with elegant clarity. Look, I have trouble ordering a pizza without half a dozen “um’s” and “uh’s” thrown into my broken sentences. Yet Sotomayor never once—in over two hours of testimony that I watched—sounded garbled or incoherent. She also never spoke with her hands, an unfortunate habit many of us in academia share. She looked cool, calm, and collected; strong, authoritative and poised. She looked—and sounded—like a Supreme Court Justice.

At no point did Sotomayor’s testimony elude to any biases. Yet that seems to be the very point of contention in the weeks leading up to these hearing. Critics on the right—perhaps captured best in Pat Buchanan’s racist, asinine, factually dishonest op-ed—have called her integrity (and intelligence) into question, worried that she’ll ruin the Supreme Court’s long run of impartiality. We wouldn’t want Sotomayor to sully the Supreme Court’s magnanimous, upstanding record with her reckless impartiality, now would we?

Jamelle offers a particularly insightful take on this logic:

What pisses me off is this completely ahistorical sense on part of Republicans that the Supreme Court is and always has been a perfectly just, perfectly impartial institution. For most of this country’s history, the default perspective on the nation’s highest court has been that of wealthy white men, and accordingly, the court’s rulings have reflected the biases and prejudices of its members. The court’s Dred Scott ruling, for instance, clearly reflects the fact that a majority of the Court’s members at the time were slaveholders. Likewise, the Court’s ruling in Plessy v. Ferguson clearly reflects a group of men who had – like most of their peers – internalized a narrative of black inferiority and black “difference.”

The problem here is not (necessarily) that Sotomayor’s impartiality is being questioned and scrutinized. I honestly think any candidate for this position would receive similar treatment, though maybe not to the same extent. That said, the real problem with throwing around this concept of “impartiality” is the ahistorical assumption that the Court was ever, in fact, impartial. There’s nothing wrong with wanting an impartial Court, but romanticizing the integrity of past decisions is woefully naive.

The notion that the Supreme Court has always been fair and balanced fails to adequately problematize the decisions of past Courts, which just so happen to be comprised solely of white males. Whitewashing the past takes the impartiality of previous (white male) Justices for granted, a re-reading of history that obscures the reality of gross bias in past Courts. In fact, with the Court's new gender, ethnic, and racial makeup, there's a strong argument that they're more impartial today, identity politics notwithstanding. But as new faces enter the Court, challenging racial and gender hegemony, “impartiality” all of a sudden becomes a pressing concern. And with Sotomayor, the concern isn't necessarily ideological; rather, folks on the Right are worried that her ethnic and gender identity will somehow cloud her judicial vision and influence her sense of justice. Spare me. There's no white male monopoly on impartiality.