In his now-famous essay The Negro Artist and the Racial Mountain, Langston Hughes lamented the impulse of Black Harlem Renaissance era artists to shed the “Black” from their work product. At that time, the external imposition of standards of artistic excellence drove many “Negro Artists” to reject the richness of their experience in order to create palatable and racially neutral artwork. For Hughes this was anathema. The American ideal after all was to embrace the richness of difference, rather than neutering it by imposing unfamiliar standards stripped of history, context, and reality.
More than eighty years after Hughes’ essay, the same tensions persist, evidenced by the rhetoric surrounding the nomination of Judge Sonia Sotomayor to the highest court in the land. Her nomination has been branded “identity politics.” Attacks on Sotomayor suggest that she is not only a product of this “sinister” brand of politics, but a radical proponent. Pundits suggest that background should not factor into judicial calculus and that a “good judge” should detachedly interpret and apply the law; nothing more, nothing less. For Hughes it was race, with Sotomayor it is race with a side of gender and a sprinkling of class: the Identity Mountain.
We have heard repeatedly the poignant narrative that shaped Sotomayor’s identity. She lived an impoverished Bronx childhood, labored her whole life to become a high achiever, and now stands on the precipice of history. What should be hailed as a story of American triumph, however, has been contorted to imply that Sotomayor will engage in “tribal justice,” that her race will be determinative of her judicial outcomes, and that bias will cloud her judgment to the point of ineptitude.
What exactly, though, is this identity politics of which we speak? If the references to identity politics are meant to suggest that Sotomayor’s mode of adjudication will be colored with an agenda for minority enrichment, her record does not support such paranoia. Additionally, Sotomayor’s critics seem to invoke the label of “identity politics” inconsistently, based on whose “identity” they view as receiving an advantage. In his speech on John Roberts’ confirmation vote, then-Senator Obama pointed out that Roberts “has far more often used his formidable skills on behalf of the strong in opposition to the weak.” But the same Sotomayor critics continually turn a blind eye when Chief Justice Roberts’ rulings steadfastly safeguard the rich. Similarly, if such references to identity politics are meant to convey the idea that race and gender somehow factored into her nomination, surely political considerations lurk behind each and every appointment; it is politics after all.
If the denunciation of identity politics is meant to buttress the oft-articulated mantra that “justice is colorblind,” then the arguments against Sotomayor still carry little weight. If colorblind justice means that Judge Sotomayor cannot summon her past to inform her present judgment, then such a proposition cannot stand. A justice shorn of experience is a justice of folly, or worse, no justice at all. Such experience prompted Justice Ruth Ginsburg, known for her record of fighting against gender discrimination prior to her appointment to the Supreme Court, to deviate from typical practice and read her impassioned dissent in Ledbetter, a decision that made equal pay lawsuits more difficult to file. Such experience also proved a hallmark of Justice Thurgood Marshall’s piercing civil rights analyses. Still yet, the cries for a cloistered judiciary continue to ring loud from these purported friends of justice.
The notion that background in America carries no significance is subtle but dangerous. A clear distinction exists between recognizing and embracing what Jonathan Sacks calls “the dignity of difference,” and insulting this dignity by demanding the erasure of difference. The line between them is easily blurred. We cannot allow this nomination, which represents a moment for a collective national embrace and pride, to be wasted by partisan rancor and hackneyed rhetoric. It should not be tolerated; not now, not ever.
And as for those mountains, all we can ask is that Judge Sotomayor continues to climb as she has so gracefully done thus far. Give us that raw jazz that only Harlem could know. Give us those sublime arias that only a woman could produce. Give us those pain-laden stanzas that only a pen of the projects could construct. Give us American justice, the way it should be.
ALBERT OSUEKE is a law clerk at Advancement Project, a national policy, communications and legal action group committed to racial justice. To watch a video produced by Advancement Project on the negative rhetoric surrounding Judge Sotomayor’s confirmation, visit: http://www.youtube.com/watch?v=POYA9uev828. For more information about Advancement Project, go to www.advancementproject.org. You can email the author at email@example.com.