Hearings Through the Looking Glass

“I am a Brooklynite, born and bred—a first-generation American on my father’s side, barely second-generation on my mother’s."

—Justice Ruth Bader Ginsburg

I am who I am in the first place because of my parents . . . My father was brought to this country as an infant. . . He grew up in poverty. Although he graduated at the top of his high school class, he had no money for college. . . in the midst of the Depression, he found that teaching jobs for Italian Americans were not easy to come by, and had to find other work . . .”

—Justice Samuel Alito

These two statements—the first by then-nominee Ruth Bader Ginsburg in 1993 and the second by then-nominee Samuel Alito in 2006—are typical of opening statements of modern Supreme Court nominees at their confirmation hearings. These personal stories are meant to honor the struggle of their parents, but more importantly they’re designed to frame the nominee (almost always an Ivy League-educated sitting federal appeals court judge) as a real person with a background that reflects two of the most prized features of a great American story: adversity and success. Nominees attempt to show that they are in touch with common American experiences and people—that they understand the struggles of the poor, of immigrants and minorities.

Even then-nominee John Roberts talked about working at a mill during the summers in his childhood. (This attempt at working-class identification was tempered by the revelation that the mill was owned by his father.) But when a Supreme Court nominee is a person of color, this standard framing device becomes the central story.

It hardly matters whether it comes from Pinpoint, Ga. or the Bronx, N.Y.; a transcendent family story about race infuses every part of the minority nominee’s confirmation process. In the case of Justice Thomas, the nominee and his supporters used “the Pinpoint strategy” to convince the public that Thomas, a stalwart conservative member of the Reagan administration, would be sympathetic to the plight of racial minorities and the poor. It turned out not to be true, but Thomas’ story of his hard-scrabble upbringing and his assurances that when he saw black prisoners he thought “there but for the grace of God go I,” convinced enough people (especially before the devastating Anita Hill sexual harassment revelations), that Thomas would “remember where he came from.”

For Judge Sonia Sotomayor, her personal story is offered to provide historic weight to her nomination and to give Americans a sense of, well, hope and change. It’s a genuinely impressive story. More so because her struggles appear to have made Judge Sotomayor more open, more giving and more committed to giving back to the community from which she comes, rather than embittered and rigid like Justice Thomas.

So watching Republican members of the Senate Judiciary Committee line up to paint Judge Sotomayor as prejudiced, truly feels like one of those surreal moments that increasingly characterize public discussions about race in 21st-century America.

It’s race through the looking glass: The Latina nominee with the moderate judicial record is cast as prejudiced by the senator (Jeff Sessions) who lost his own bid to be a federal district judge after it was revealed that he had expressed admiration for the KKK and called a black staff member “boy.” The Republican Party’s star witness against Judge Sotomayor will be the sympathetic, dyslexic white firefighter from New Haven, Frank Ricci. But those same Republicans will ironically use Ricci’s compelling story to support the GOP claim that “empathy” is irrelevant to judicial decision-making.

It is Judge Sotomayor—who candidly acknowledges that race and gender experiences may affect how a judge sees the facts of a case and who publicly describes the importance of guarding against one’s own prejudices—who will be painted as a biased judge. But Clarence Thomas—who disingenuously promised to “strip down like a runner” when judging and leave behind his former views as a partisan cabinet member in the Reagan administration, but whose decisions demonstrate a lock-step allegiance to those hard-right political views—is regarded as strict constructionist, not a partisan.

And Chief Justice John Roberts—who spun a charming fantasy about judges as impartial umpires calling balls and strikes—enjoys the reputation of a neutral, principled jurist, even though, his judicial decisions since confirmation how consistent outcomes in favor of prosecutors, the state and corporate defendants.

Judge Sotomayor will spend hours this week defending herself against charges of prejudice based on the statements she made in speeches she gave in which she talks about the effect of race and gender on judging. It’s legitimate to ask her to expound on these public statements, especially because some of them require clarification. Moreover, nominees are regularly asked to explain their speeches and writings. But for Sotomayor, it will be a thankless task. No matter what she says, it’s unlikely that she will convince those inclined to see her as a racial partisan. It’s much more comforting to accept the unreflective certainty of Chief Justice Roberts and Justice Thomas’ sports analogies about stripped-down runners and umpires, than the messy, complication of Judge Sotomayor’s candid admission that “I simply do not know exactly what [the] . . . difference will be in my judging, but I accept that there will be some based on my gender and my Latina heritage and those experiences my background has imposed to me.”

Judge Sotomayor should be applauded for her courageous and candid statements. More judges should openly talk about how their experiences affect their decision-making. The unspoken assumption has always been that white male judges are the ultimate judicial decision-makers, constitutionally hard-wired to divine the law and administer it impartially. But they, too, need to come clean about the personal and professional experiences that affect their approach to the law. A judge’s assumption about his impartiality is more dangerous than the imagined threat of Sotomayor’s Latina pride. In fact, the central theme of Sotomayor’s often-delivered “wise Latina” speech is that a judge must be conscious of how his or her background might effect their decision-making in order to, as Judge Sotomayor urges, engage in “constant and continuous vigilance in checking [one’s] assumptions, presumptions and perspectives.”

Maybe it’s instructive to just refer back to the statement of another judge at his confirmation hearing—a statement regarded as uncontroversial and even supportive of the nominee’s fitness for the high court. That nominee was Judge Samuel Alito, who said in 2006: “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account.”

Sherrilyn A. Ifill is a regular contributor to The Root.