One day there will be no more barriers to breach, no more "firsts" for society's former outsiders to claim. But that day has not yet come. So as Sonia Sotomayor seeks to become America's first Latina Supreme Court justice, many of her supporters look on with a mixture of gratitude and disbelief. Tough characters such as Congressman Jose Serrano of New York have been reduced to tears. When I ran into him at Sotomayor's confirmation hearings, Serrano explained that Sotomayor's mother reminded him of his own parents, and their sacrifices and determination to see him make something of his life.
Others were equally touched. "With Barack Obama as president and Sonia Sotomayor as a candidate for the Supreme Court, I am witnessing something I never thought I would experience … I don't know what it means, but I like to think it speaks well of America," said Margarita Rosa, executive director of New York's Grand Street Settlement, who got to Princeton two years ahead of Sotomayor.
Juanita Hernandez, a Harvard-educated lawyer for the Securities and Exchange Commission, said she "prayed for a Latina." Sotomayor is "the dream come true for the immigrant," added Hernandez, whose parents were born in Mexico. "We have not had a Latina like this ever," exclaimed Jenny Rivera, a professor at CUNY School of Law.
The senators were a good deal more restrained. Indeed, some seemed unsure whether to congratulate Sotomayor or condemn her. Members of the Republican minority repeatedly invoked what has become the most infamous speech ever given by a Latina. What did she mean, they want to know, in suggesting that a "wise Latina woman" might make better decisions than white men?
Sotomayor was suitably contrite. She said her words were meant to inspire young Latinas; she wanted to help them to see how "their lives and experiences would enrich the legal system." She wanted to help them to believe "they could become anything they wanted to become." Over and over, she explained that she did not think that any ethnic group or gender had a monopoly on wisdom.
Sen. Lindsay Graham of South Carolina was having none of it: "If I had said anything like that, and my reasoning was I was trying to inspire somebody, they would have had my head," he railed. Had he dared to suggest he would make a better senator "because of my experience as a Caucasian male … it would make national news and it should," he added.
Graham is right. But what he chose not to point out is that, not so long ago, American truly believed what he now acknowledges is ridiculous: that only white males (and the occasional white woman, preferably the widow of a senator who died in office) should be senators. Sotomayor and Graham both were born into that world. And strange as it may seem today, they were also born into a country that had only seen white males as Supreme Court justices.
For someone like Graham, the exultation over Sotomayor's success may be difficult to understand—as it may be for others who have never been made to feel like second-class citizens, or who have never doubted that America would embrace them, or their children.
As Sotomayor pointed out in her now notorious 2003 speech, she was born in 1954, the year Brown v. Board of Education, the famous Supreme Court case that officially desegregated America's public schools, was handed down. Graham's home state of South Carolina spawned Briggs v. Elliott, the first in a series of cases that were bundled together as Brown. Briggs was sparked by segregation in Clarendon County, an area whose schools remain effectively segregated to this day.
It was only in 1967, some 13 years after Sotomayor's birth, that President Lyndon Johnson nominated Thurgood Marshall, who became the first person of color on the Supreme Court. It was not until 1981 that the court got Sandra Day O'Connor, its first woman.
Sotomayor's now notorious speech can be characterized many ways. It was, in part, history lesson, and in part a reminder that life experiences matter, and that, in America, the experiences of women and people of color have, in some ways, been quite different from those of white males. Her crime was in suggesting that those experiences might have something to do with judging.
But that observation (however inelegantly Sotomayor may have phrased it) is not all that remarkable. It's impossible to imagine, for instance, that a court that permitted blacks as members would have decided that racial segregation was proper, as the Supreme Court did in Plessy v. Ferguson (the 1896 decision upholding the "separate but equal" doctrine that finally was overruled more than half century later by Brown v. Board). Nor is it possible to imagine a court with Japanese-American justices ruling that it was perfectly fine for the government to intern over 100,000 people of Japanese descent (as the Supreme Court did in Korematsu v. the United States in 1944—a fact Congress finally got around to apologizing for in 1988.) White men (some of them, at least) have a history, Sotomayor was arguing, in assuming that their biases add up to objectivity; and we must first acknowledge those biases before we can set them aside.
Thank God we are no longer a country where blatant prejudice and unexamined biases control the judiciary. And we are right to celebrate that. Our transformation does, indeed, speak well of modern-day America, and of the ultimately transcendent power of its founding ideals. But the tears of Sotomayor's fans and her own (now eaten) words remind us that we are still in the process of overcoming a painful past. We have not yet reached the point where we can simply assume, as Graham apparently does, that gender, class, and ethnicity can be totally divorced from how we experience and interpret life.
A wise judge would know that.