Tuesday, May 26, 2009

Judging by Identity   [Peter Kirsanow]

During the presidential campaign, there was considerable commentary about the prospect of a President Obama ushering in a post-racial era in America. The candidate himself fueled the commentary, frequently making sounds about the advent of a society that transcends race.

The nomination of Judge Sotomayor demonstrates that identity politics not only remains alive and well, but may be accompanied by an unabashedly racialist interpretive doctrine. If there remains a sentient being in the White House press corps, he should ask Mr. Gibbs how a post-racial president could nominate to the Supreme Court a judge who said the following:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

So, inherent physiological differences may make a difference in one’s judging. Combined with Sotomayor’s vote in Ricci v. DeStefano, the statement suggests a judge quite comfortable with racial, ethnic, and gender preferences. In the Obama era, identity politics hasn’t gone away; it’s been joined by identity judging.

05/26 01:24 PMShare