Sotomayor and "Master Status"

July 15, 2009
Posted by Jay Livingston

In the Sotomayor confirmation hearings, Republicans have swarmed on Ricci v. DeStefano, the New Haven firefighters case. To hear them tell it, Sotomayor flung the law aside in upholding the lower court decision. She, the majority of the Second Circuit Court, the Federal judge who wrote the original opinion, and the four dissenting Supreme Court justices all based their opinions entirely on a preference for blacks and Hispanics and an animus towards whites. They didn’t consider the law.

By contrast, the five males (four of them white) on the Supreme Court who sided with the white male plaintiffs based their decision wholly and impartially on the law. Their race had nothing to do with it.

The Republican strategy depends on the tendency for privilege to remain invisible. I’ve commented on this before, here and more recently in a post called “White Is Not a Race” White is the default setting, the one we take for granted. Because it’s usually invisible, we can’t see how it could affect the way we think.

For the Republicans, Sotomayor’s race and gender are what Everett Hughes called “master status” – the dominating fact about her. So they assume that these characteristics control everything she does, including her legal opinions. Unfortunately for their argument, they can find nothing in those opinions that confirms this idea, except perhaps her brief statement in Ricci. Instead, they must ignore the large volume of opinions she has written (more than those of recent Court nominees) and focus on speeches in nonlegal venues.

In any case, the hearings have only ritualistic value and are without real consequence. The Senate will confirm Sotomayor, and the Court will have its first Latina, wise or otherwise.