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Sotomayor and Proportionality


It is being said that Sotomayor’s judicial decisions are mainly the same as her colleagues’ and show no special race or gender consciousness, except perhaps for a few. But then one has to ask why, in her speech at UC Berkeley School of Law, she so obsessively promoted the pretense that there is some special  female or Hispanic point of view that can only be heard by having females and Hispanics on the bench.

Is she being dishonest? Or is she just using identity politics and talking about the “Latina soul” as a ploy to gain more judicial appointments for women and Hispanics — roughly proportionate to their share of the population, a concept that violates individual equality before the law? Proportionality was clearly the standard for her decision in the Ricci affirmative-action case: Since no blacks and only one Hispanic passed the test, the whites who passed it had had to be denied what they had earned.

So her Latina rhetoric is not innocent, regardless of the nature of the majority of her decisions. It can be used to deny justice to whites and to encourage ongoing minority grievance when proportionality is absent.


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