The GOP: Now Against Identity Politics

They're trying to close the barn door after the horse has bolted. And they shouldn't get away with it.

That would be Texas Senator John Cornyn and other GOP critics of Sonia Sotomayor, whose nomination to replace David Souter as an Associate Justice on the United States Supreme court hit the Senate Judiciary Committee today.

On yesterday's Fox News Sunday, host Chris Wallace, noting Sotomayor's remark "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," asked Cornyn and Senator Dianne Feinstein (D.-Ca.)

But is it the right thing... for a judge to say that I think a Latina judge will — I believe would come to a better conclusion than a white man?

Feinstein first responded "Well, she said a wise Latina. I mean, as I told John earlier, I could say, "Can't you believe that a silver-haired Texan who served on the supreme court of his state might know more than whoever it is?" Sure you could. And it would..."

Senator Cornyn then said of Sotomayor

this is not an isolated comment. This was an argued point that she repeated again and again and again. The president said she misspoke. His press secretary said, "Well, maybe she should have used different words."

But this is a point that she was trying to make and has consistently made, that in some ways the quality of justice depends on who the judge is. And that just can't be — can't be true.

After which, Feinstein continued

Judges are not automatons. They are human beings. And they bring to whatever court they serve their experiences, and a variety of experiences, and a knowledge of the law and your — the human experiences that you have as an individual, I think, play a role.

You know, I've listened to the balls and strikes and, "Well, we're just umpires," and then the individual goes to the Supreme Court and does exactly the opposite. So one's experience, one's venue, one's way of looking at an issue does come into it somewhere along the line. And I think most of us have seen this over and over again.

Not bad, but a little defensive. How about suggesting that Sotomayor's take on empathy is within the mainstream of American thought- or at least the philosophy of the Supreme Court? Or maybe quote Judge Samuel Alito at his confirmation hearing, responding to a question of Senator Tom Coburn (R.- OK) by saying:

....And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. 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. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

Alito was wrong. Sotomayor was wrong. But that is a mere opinion. If Repubs choose to grandstand on the issue, Democrats should strike back, perhaps asking why being descended from Italian immigrants grants someone special insight and wisdom, while being descended from Puerto Rican migrants is less ennobling. Or perhaps, more directly and less diplomatically, they might open with: are Italian-Americans superior to other Americans?