By Adam Benforado
If you thought race and gender politics were put to rest with the historic presidential campaigns of last year, think again. The excitement and controversy over Judge Sonia Sotomayor's nomination to the Supreme Court demonstrate both how far we have come and how far we have to go.
Although Sotomayor has served on the federal bench for 17 years - longer than any incoming justice in the last 100 years - there is little hope that the confirmation process will focus on her judicial record. The order of the day is Sotomayor's identity as a woman and as a Latina.
Some have suggested that Sotomayor brought this on herself by saying that her background and experiences as a Hispanic woman give her a unique perspective when judging cases.
Yet the isolated snippets of Sotomayor's remarks that have become so contentious are hard to distinguish from some of the comments made by recent Republican appointees to the Supreme Court. Justice Samuel Alito, for example, explained during his confirmation hearings that when he gets a discrimination case, he takes into account the experiences of people in his "own family who suffered discrimination because of their ethnic background or because of religion or because of gender."
The general thrust of these comments - that personal perspective affects the way judges construe facts - is well-supported in the academic literature. But that has not stopped critics from assailing Sotomayor as an "activist" judge and casting Obama's call for an empathetic appointee as code for one guided by feelings rather than the law. As freelance Inquirer columnist John Yoo put it in a recent blog post that echoed comments by Sen. Orrin Hatch, Sen. Mitch McConnell, and others, the danger is that Sotomayor will be "voting her emotions."
Whether deliberate or not, such statements play on stereotypes of women as ruled by hormones, devoid of reason, and lacking the discipline to put aside their feelings and make hard decisions. The same assertions have been raised for centuries to prevent women from taking positions of power outside the home.
In 1872, when Justice Joseph P. Bradley concurred in the Supreme Court's denial of Myra Bradwell's admission to the Illinois bar, he justified the result on the grounds that women are naturally ill-suited to be lawyers because they lack the "decision and firmness which are presumed to predominate in the sterner sex." Almost 100 years later, Edgar F. Berman, Hubert Humphrey's personal physician and a political adviser to the Democratic Party, argued that women's "raging hormonal influences" should disqualify them from taking on significant authority roles.
This harmful misperception persists. As one voter told the Irish Independent during the last presidential election, "Hillary Clinton should not be the next president of the United States. Women are emotional. They do not make good political leaders."
And, as Hillary and numerous female business leaders, law partners, and politicians have discovered, counteracting this misperception through assertiveness brings comparable liabilities. Thus, the latest attempt to galvanize the public against Sotomayor has involved assertions that she lacks the proper judicial "temperament," as revealed by her purportedly aggressive questioning and combative manner on the bench.
Sotomayor has been called "nasty," "strident," and "temperamental." Whether these assertions have any basis in fact, they seem likely to be used during the confirmation battle to invoke racial stereotypes about "hot-blooded" Latinas and gender stereotypes about aggressive women.
Such criticisms reveal striking inconsistencies. When Justice Antonin Scalia exhibits a caustic demeanor during oral argument or tersely dismisses his colleagues' positions in his opinions, it is characterized by some as a sign of backbone, toughness, and principle. When similar behavior is attributed to Sotomayor, it is seen as revealing the flawed traits of her type.
Sotomayor's colleagues on the Second Circuit Court of Appeals have strongly denied the accusations about Sotomayor's confrontational demeanor, suggesting that her behavior has been identical to that of other members of the court. According to Judge Guido Calabresi, the commentary about Sotomayor's behavior on the bench has clearly reflected prejudice. "Some lawyers just don't like to be questioned by a woman," he said. "It was sexist, plain and simple."