What's So Threatening About Sotomayor's Real Life to Her Right-Wing Critics?

By Emily Badger, Miller-McCune.com. Posted June 12, 2009.

"The formula says, 'How different is your prediction than my prediction?'" Page said. "That's mathematical fact. The empirical question is: What would cause us to see the world differently?"

Belknap might point out that, obviously, it's our different backgrounds — Sonia Sotomayor's childhood raised by a single mother in a Bronx project compared to John Roberts' childhood as a boarding-school student and the son of a steel plant manager.

In Sotomayor's original quote, she was stressing more the value of her experiences than the novelty of her ethnicity.

"What's really important about that quote — and I think many of us do this automatically — we assume a false parallelism she was actually not making," Guinier said. Sotomayor was not comparing a wise Latina to a wise white man, although many assumed the word appeared twice in the quote. "She's comparing someone who has a rich set of experiences and can use them to someone who is not wise."

"You could read into her quote," Guinier added, "the Scott Page view of diversity."

One Kind of Homogeneity
That view emphasizes not just the differences apparent in a photo of the potential new Supreme Court, which will have one African American, two women and a Hispanic if Sotomayor is confirmed. Equally important are all the ways in which their biographies differ, contributing to the collective breadth of life experience.

Sotomayor would actually be contributing to one kind of homogeneity on the court: It is increasingly dominated by former Circuit Court of Appeals judges with Ivy League law degrees. Conservatives championed these criteria during the Bush Administration, in dispatching nominee Harriet Miers and confirming John Roberts and Samuel Alito.

"The great irony here is they set up these de facto credentials for being a Supreme Court justice that don't exist in the Constitution," said University of Maryland law professor Paula Monopoli. "(Sotomayor) meets now all of the criteria they set up, and they're not talking about it."

Page's research suggests that as Americans may celebrate later this year the first Hispanic seated on the high court, they should remember the value of all kinds of backgrounds. When Sandra Day O'Connor retired four years ago, for example, she took with her the last remaining perspective of someone who had once been an elected official, one of many lost views Belknap laments.

He blames Roe v. Wade, a decision that has remained so divisive for the last three decades that he says no president could effectively nominate anyone other than the safest bet who resembles everyone else already sitting on the court. Law professors and politicians — two groups widely represented in the past — today come with a trail of opinions that would likely bar them from confirmation in a climate where Sotomayor has stirred controversy on a single sentence uttered eight years ago.

In the earliest days of the republic, Monopoli recalls, the court sought geographically representative perspectives to give its opinions legitimacy throughout a diverse country.

"We still need that," she said, "we just need it in a different way now."

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