Abstract
This article challenges the celebration of Sonia Sotomayor’s confirmation to the Supreme Court as the realization of the American dream and Court diversity in a colorblind era. It analyzes the epistemological compromises Sotomayor had to make in order to comply with what I call the prevailing legal metanarrative of postracial impartiality. Prime among these compromises was Sotomayor’s retraction of her prior critique of the disembodied and de-raced perspective this legal metanarrative presumes. I read the confirmation hearing and its aftermath as a performative ritual in which both her interrogators and Sotomayor herself restore the normative hegemony of the ideal of colorblind objectivity. I argue that this ideal functions ideologically to maintain both normative and material white and masculine privilege, precisely as state decisionmaking institutions become increasingly sexually and ethnically diverse. I draw out the dramatic ironies of the participants’ strategic disavowals – Sotomayor’s denial of the roles personal experience and empathy play in judgment, and state officials’ denial of the persistent material relevance of race in the contemporary United States. I show that trading in these rhetorics has pernicious, and paradoxical, repercussions for the national racial order.
Keywords
On August 8, 2009, in the first Supreme Court swearing-in ever televised live, Sonia Sotomayor recited her vows before an intimate gathering of family, friends, and photographers. The ritual was a reenactment of the private official ceremony, conducted minutes before in the justices’ conference chambers. In the public production, the freshly appointed associate was escorted to the front of a room filled with press correspondents to take an oath, administered by Chief Justice John Roberts, committing herself to “faithfully and impartially discharg[ing] the duties incumbent upon” her as the first woman of color to be confirmed to the country’s highest court. In the short scene, Sotomayor and her mother are suited in all white and full makeup; her mother holds a Bible beneath her left hand as she holds her right hand in the air. Her brother stands between the two women, one hand on each of their backs, observing Roberts as Sotomayor delivers her lines. Sotomayor’s gaze is trained beyond Roberts’ direction, her expression betraying serene pleasure. Her eyes flutter closed in blissful concentration with nearly every alternate word, as if to absorb a singularly ecstatic experience. Upon the oath’s completion and Roberts’ congratulations, Mrs. Sotomayor embraces her daughter as the camera crews applaud and her brother beams. 1
Read one way, this scene depicts a stock display of political pomp, a perfunctory civic charade. Read another way, the audiovisual semiotics of the two-minute performance – the procession, the hand and body positionings, the ecstatically solemn attitudes, the ritualistic conferring of a new title – might inflect it with a certain matrimonial quality. If we integrate these readings of the event, bearing in mind that it seems to signal a loss of innocence accompanying an acquisition of status, its allegorical dimensions become more intriguing. Sotomayor’s swearing-in is a ceremony; equally importantly, it is a celebration. What prefigures it, and precisely what success does it mark?
To suggest that Sotomayor here participates in a ritual that seems to wed her symbolically to the state is to suggest at most that it re-presents her innocence lost in the theatrics of her confirmation and at least that it depicts a celebratory moment meriting qualification. The analysis that follows aims to contextualize and interrogate the felicitous portrayal of President Obama’s first successful Supreme Court nomination, culminating in her public swearing-in, by asking what compromises were made along her journey, what concessions was Sotomayor compelled to make at what was essentially her trial by the Senate judiciary three weeks prior. In this critical retelling, Sotomayor stood trial for her past critique of the predominant legal metanarrative scaffolding the contemporary, purportedly postracial state, and her vindication came at the cost of her retraction of that critique.
The analytic focus of this recounting is Sotomayor’s July 2009 hearing before the Senate judiciary committee where, in front of a congressional and national audience, she repeatedly disclaimed her polemical prior remark that “a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life” by deeming it, among other things, “a rhetorical flourish that fell flat.” 2 In their republication at the height of a media frenzy incited by Obama’s nomination announcement, Sotomayor’s critical comments had problematized both the possibility and desirability of a standard of rationality that is aperspectival and colorblind, thereby compromising the normative hegemony of what I term the postracial impartiality ideal. I argue that the confirmation discourses provisionally restore the co-operative ideals of impartial and race-blind legal reasoning that had suffered temporary rupture in the public resurfacing of Sotomayor’s past critique.
I thus consider the senatorial interrogation of a Supreme Court nominee as a trial-like setting in which the meaning of legal ideals, and the power arrangements at stake in their preservation, are consolidated. Sotomayor’s confirmation hearing served as a national stage on which the prevailing ideals of impartiality and race-blind legal reasoning would be rehearsed, reaffirmed, and reconstructed not only by her interrogators but most unswervingly by Sotomayor herself. Modeled on critical case studies like that of Kimberlé Crenshaw and Gary Peller, my discourse analysis fuses feminist critiques of the impartiality ideal with antiracist critiques of colorblind constitutionalism. 3 In this light, the postracial impartiality imperative presumes a socially and affectively disengaged rational agent who issues formal justice through the uniform “colorblind” application of law to citizens in denial of the fact that their lives remain overdetermined by color-coded structures of inequality. 4 To refortify the prevailing ideal of objectivity, then, is to enable it to continue to function as an ideology that obscures the particular beneficiaries of its norms and rationalizes the social disparities it reentrenches.
The article proceeds as follows. Drawing on both the feminist critiques of impartiality articulated by Iris Marion Young and Donna Haraway and the critical race scholarship of Ian Haney López and David Theo Goldberg, I specify the co-operative strands of the postracial state’s colorblind objectivity ideal and preview a critique of this paradigm. I offer a rereading of Sotomayor’s (in)famous “wise Latina” speech as a critique of both the possibility and desirability of impartial and race-blind judgment in a multicultural country. Using Judith Butler’s theory of performativity as an analytical framework, I then consider the confirmation hearing as a performative ritual in which Sotomayor repeatedly disclaims her prior remarks and follows ranking judiciary committee member Jeff Sessions’ lead in reasserting the impartiality imperative as the cornerstone of colorblind justice. Finally, I turn back to the critical theories introduced earlier to illuminate the ideological functioning and material racial repercussions of these political theatrics.
This article is an effort to ponder the ironic, perhaps tragic, compromises Sotomayor was compelled to make on the last leg of her journey to the Supreme Court. Though she was lauded as the first woman of color to become associate justice, she ultimately denied the influence of her lived experience, shaped in part by her race and gender, on her judgment and affirmed her commitment to a paradigm of legal reasoning whose prototype remains the presumptively unmarked white man. While the Senate celebrated her sexual and ethnic particularity, Sotomayor seemed to know that her confirmation depended on her deeming it irrelevant. The event of her confirmation thus sustains the tension between our celebration of diversity and our insistence that difference does not influence judgment and that judges be silent about difference. A woman of color rises to authority by authorizing white male norms; a beneficiary of affirmative policies temporarily affirms an ideal of formal procedural justice that leaves race-based disparities unrecognized and intact.
I. Postracism’s prevailing (and paradoxical) legal paradigms
My analysis begins by sketching the contemporary landscape within which Sotomayor has been both criticized and celebrated. What, precisely, are the predominant norms of judgment and ideals of justice circulating in sociolegal discourses in the early twenty-first century, and how do they function ideologically to obscure the power relations and private interests they sustain? Here I consider two prevailing juridical ideals, impartial rationality and colorblind legalism, as co-constitutive of an overarching normative legal metanarrative I refer to interchangeably as postracial impartiality or colorblind objectivity. This paradigm of legal rationality, which scaffolds the current racial order, underwent momentary rupture and provisional repair during Sotomayor’s dramatic nomination, confirmation, and induction proceedings.
1. The impartiality ideal
What I am calling the impartiality ideal is most clearly and elegantly articulated by Iris Marion Young as the paradigm of moral reasoning operating in American discourses of justice and rights. This paradigm calls for decisionmakers to adopt a neutral and impersonal point of view and process of rationality that is detached from particular interests. 5 It assumes that a rational agent attains objectivity by adopting a universal perspective that is the same for, and achievable by, all rational agents. The ideal of impartiality implies the accessibility of – and thus impels the search for and the claim of – a universal, objective point of view. The impartial reasoner arrives at this transcendent perspective by abstracting from all particular histories and circumstances that condition a situation and from all feelings, desires, interests, and commitments. This universal viewpoint is thus avowedly removed from the partialities wrought from group or class affiliation and from the social experiences that constitute concrete subjects 6 – for instance, the range of experiences arising out of material and mundane (dis)advantages of race, class, gender, and sexuality.
The impartiality imperative is, however, “an idealist fiction.” Its infeasibility is conditioned, first, by the inescapability of affected perspective – desires do not cease to exist and inflect the cognitive process simply because they have been excluded from the model of moral reason 7 – and, second, by the plural nature of American society: “When class, race, ethnicity, gender, sexuality, and age define different social locations,” the specificity of a rational subject’s social location prevents him from accessing a universal vantage point. Yet when asserted as an ideal in spite of its practical impossibility, this paradigm of state judgment effectively may operate either to exclude “persons associated with the body and feeling” – especially women and people of color – from decisionmaking institutions, or to require all decisionmakers to claim omniscience. 8 Each of these exclusionary and epistemological enforcements perpetuate unmarked (read: white male) subjectivity at most as an empirical reality and at least as a normative standard.
Young’s insistence on the impossibility of impartiality due to the partiality of perspectives is underpinned by feminist theories of situated standpoints that, though marked by important distinctions and contentions, commonly articulate a metaphorics of vision 9 rooting epistemology in lived experience. 10 They affirm that insofar as the lived realities of women and people of color are structurally different from those of what Young calls “white Anglo nominally heterosexual men,” 11 members of subordinated groups are able to achieve an angle of vision 12 on social relations that differs from the line of sight available from an epistemologically (rather than materially) privileged location. 13 Donna Haraway’s poststructuralist philosophy of situated knowledge sustains a critique of the detachment and omniscience of any perspective while cautioning against the claims to truth and privileged vantages made by all. Haraway affirms standpoint theory’s notion that material circumstances both inform and limit our understanding of social relations and emphasizes the incompleteness of all perspectives over the privilege of any one.
Instead of the Marxist claim that subordinated groups can access a more accurate and comprehensive account of reality and are thereby epistemologically privileged, Haraway proceeds from “a postmodern insistence on irreducible difference and radical multiplicity of local knowledges.” 14 Haraway employs scientific analogues to emphasize the active, interpretive dynamics of all modes of vision, arguing that all perception is uniquely (dis)advantaged and rendering suspect the disembodied, panoptic view from above she terms the “god trick.” For Haraway, claims to a keener “view from below” are no less problematic than conceits of omniscience: the standpoints of the subjugated are also – and as – visually mediated and socially situated. Haraway warns against “the danger of romanticizing and/or appropriating the vision of the less powerful,” which can only be contingently, never “naturally,” inhabited. The positionality of the oppressed, no less than that of the powerful, “is not exempt from critical reexamination, decoding, deconstructing.” 15 Both must have the interests informing and circumstances limiting their representations brought constantly under interrogation through a self-conscious practice Haraway terms positioning – concretely locating and taking stock of the specificity and epistemological effects of our social location. 16
2. Colorblind legalism
In tandem with the impartiality imperative operates the ideal of colorblind legalism, a contemporary vein of legal formalism that advocates facially neutral policies eschewing reference to race and rebukes race-affirmative remedies as discriminatory. This doctrinal paradigm claims the mantle of racial progressivism borne out of the civil rights movement by declaring its aim, the extension of formal legal equality to all Americans regardless of their race or ethnicity, achieved. 17 Colorblind legal logic’s shift in signification from a radical “countervoice to bald segregationism” in the wake of a deconstructed Reconstruction to a purportedly post-race antiracism has been deftly documented in the genealogies of Ian Haney López and David Theo Goldberg. 18 It suffices to say here that it was upon the prospect rather than the realization of racial justice that the racial right recovered the lexicon of colorblind law, in precisely the sort of rhetorical cooptation with which a Foucauldian genealogy would concern itself. 19 This is a rhetoric whose antiracist legacy, Haney López illuminates, cunningly now “provide[s] cover for reactionary opposition to [further] racial reform” as its political context has transformed. 20
The depiction of race-blind law as the happy ending to a process of reconstruction imagined to be complete has pernicious and paradoxical material repercussions. I’d like to preview these as a way of priming the reader to the significance of the confirmation hearing discourses comprising the core of my analysis. Critical race theorists’ fundamental contention with the contemporary legal regime of colorblind constitutionalism, imported from Marx, 21 is that to declare all citizens formally equal under the law and to forbid state consideration of and reference to race is effectively to absolve the state of responsibility for creating or redressing racial disparities persisting at the level of civil society.
One paradox marking the post-race rhetorical-procedural shift is the ironic relationship of transformation and legitimation Kimberlé Crenshaw articulates: “the very transformation afforded by legal reform” initiated in the civil rights era “itself has contributed to the ideological and political legitimation of continuing black subordination.” 22 The social transformation of deeply entrenched racial disparities imagined to issue from civil rights reforms permitted the (re)creation of a new legal mantra, premised upon colorblindness as formal racial equality, to legitimate an only partially dismantled racial order.
The institution of formal equality and full participatory rights carried symbolic and material benefits to racial minorities in the socioeconomic position to enjoy them, but it also – and also paradoxically – rendered the state blind to, and thus unable to remedy, deeply entrenched material disadvantages. The eradication of official barriers to equal opportunity instituted political but not social equality, and implemented a state posture of neutrality toward structural disparities it helped to establish but could no longer officially recognize. In Ian Haney López’s formulation, the “perversity” of race-blind rhetoric is that “if all mention of race, whether white or black, remedial or discriminatory, is equally suspect, the reality of racial subordination is obscured and immunized from intervention.” 23 David Theo Goldberg seconds: the state committed to racelessness puts “the materialities of racial distinction beyond” its own reach. 24 Willful blindness to race also enforces a legal silence about race, as the intonations that “we are beyond race” drown out reminders that equal opportunities, let alone outcomes, do not yet exist for racial minorities. 25
This paradox, that the institution of formal equality reinforces and renders politically unrecognizable and unredressable socioeconomic disparities, leads to a third. Under a colorblind regime, racism, racial bias, and prejudice are “magically transformed” from attitudes and practices historically perpetrated and perpetuated by whites to epithets attributed to those bestowing “preferential treatment” upon nonwhites. Crucially, whites are able to “enunciate positions that safeguard their racial interests without sounding ‘racist.’” 26 In the present state, where whites committed to formal equality can claim political cover from racism, we have become increasingly sensitive to practices of “reverse discrimination” by antiracist whites and nonwhites against “those whites supposedly suffering the exclusionary effects” of affirmative recognition of race and race-based inequalities. 27
A final perverse consequence of the reversal of racism is that, as it removes formal barriers to political participation, outlaws discrimination, and elevates some racial and ethnic minorities to positions of power and authority, the newly diversified state remains normatively white. Paradigms of morality, justice, and rationality continue to be defined for and by whites, 28 but are now ironically legitimated by the participation of people of color. The rhetoric of racelessness attempts to reinstate homogeneity and universality, where whiteness remains the unquestioned and increasingly unnameable ideal. Because it “whitewashes” the people of color it encompasses, the state paradoxically invites superficial heterogeneity while maintaining normative homogeneity. This is a clever “epistemological self-privileging” 29 that “suits best those who are already accustomed to never thinking about themselves and their social position in racial terms.” To whites who opt for this exemption from critical self-interrogation, colorblind white dominance remains invisible. 30
Thus in its manifold paradoxes, the revaluation of colorblindness from a commitment to erasing race-based material disparities to a prematurely enforced blindness to the persistence of these disparities is revealed as a political strategy to preserve entrenched social structures behind a more colorful contemporary façade. This postracial reality Haney López aptly terms colorblind white dominance. 31
II. Colorblind objectivity’s legitimacy crisis
The legal moral paradigm of colorblind objectivity prevails in the purportedly postracial contemporary era, yet its reign is anything but eternal or invulnerable. On the contrary, it is perpetually subject to contestation, and it prevails only through its constant refortification. If the theatrics of Sotomayor’s confirmation hearing will illustrate the latter point, the controversy on which that hearing centered instantiates the former. The presumptive normative hegemony of postracial impartiality was publicly called into question in July 2009, when President Obama’s announcement of his selection of Sonia Sotomayor to fill the Supreme Court seat vacated by the retiring David Souter incited a scrupulous dig on the part of pundits, journalists, and court scholars alike into Sotomayor’s personal history and professional paper trail. In addition to publishing testimonials elaborating her biographical embodiment of the American dream – a Latina raised by Puerto Rican immigrants in the Bronx projects whose unwavering work ethic earned her entrance to Princeton University and Yale Law and launched her careers in public prosecution and corporate litigation and ascent to the federal bench – investigators recovered one particular speech evidencing Sotomayor’s critical stance toward the reigning legal metanarrative. The recovered text promptly was seized upon by congressional partisans more concerned with reaffirming those narratives than with confirming a capable associate justice. 32 In the seven-week interim between Sotomayor’s nomination and hearing, it incited a minor crisis of postracial legal legitimacy whose restoration her trial by Senate would stage.
The prime source of skepticism was a transcript and video recording of a lecture Sotomayor gave at a 2001 Berkeley conference, in which she considers, in her words, “my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.” 33 In this speech recounting her personal history and her philosophy of the impact of material circumstances on judgment, similar versions of which she gave on several other occasions, Sotomayor asserts that her Latina identity is wrought from life experience rather than bestowed by a political label. In an emphatic interlude riddled with clichés, Sotomayor herself resounds the rhetoric of the American dream, describing her “vibrant” and “magical” upbringing by parents who taught her “to love being a Puertorriqueña and to love America and value its lesson that great things could be achieved if one works hard for it.”
But she continues by explicating the paradox underpinning early twenty-first century discourses about race in America: their simultaneous espousal of ethnic diversity’s enriching effects in theory and of race-blind policies in legal practice. Despite taking pride in “our ethnic diversity,” Sotomayor explains, we also insist “that we can and must function and live in a race- and colorblind way.” We romanticize difference yet remain unwilling to reckon with structural disparity. She describes how the country’s “deeply confused” self-image and “ambivalent” relation to its diversity perpetuates this tension between rhetoric and policy, alluding to its contradictory paradigm of constitutional interpretation that enforces legal ignorance of the ethno-cultural differences “that in other contexts we laud.” Many of the same issues discussed in affirmative action debates – the material legacies of the country’s fraught racial history, the ways in which institutions change in character as they diversify – are at the heart of her discussion of “what it all will mean to have more women and people of color on the bench,” as they dismantle barriers to equality in the court system. The precise topic of her speech, the potential significance of having “more women and people of color on the bench” for “the development of the law,” proceeds from the not-so-implicit premise that contingent experiences inform judicial perspectives.
From here, Sotomayor’s intersectional critique of the ideals of impartial and colorblind judgment comes to the fore: with specific references to “the potential effect of individual experiences on perception,” Sotomayor deems the imperative “that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of the law” an “aspiration” that she “agree[s] with and attempt[s] to work toward.” However, she qualifies, “I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.” Differences in perspective are “part of a larger practical question we as women and minority judges in society must address.” Sotomayor argues that “diversity of opinion” arises out of “diversity of experiences.” There is, therefore, no essential or privileged perspective from which a single voice can speak with universal authority for any collective. “No one person, judge or nominee will speak in a female or people of color voice.” Citing legal scholar Martha Minow’s affirmation that “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” Sotomayor then explicitly problematizes the possibility of impartiality: “I further accept,” she states, “that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that – it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” Not because they all share the same perspective, but because they inflect the process of judging with a multitude of different perspectives, will women and people of color “make a difference in the process of judging” and thereby “have an effect on the development of law.”
Sotomayor does not imply that white male judges “of different experiences or backgrounds” than the parties before them “are incapable of understanding the values and needs of people from a different group.” Quite the opposite; she suggests that judicial empathy – a conscious effort to reckon with the interchangeability of oneself with another and to understand the circumstances under which that person has acted and under which the court’s opinion will place her – is hard won by anyone, and not an endeavor that all judges mindfully undertake. Sotomayor affirmatively aspires to a knowledge informed by empathy: she describes her conscious aim to engage “my experiences and extrapolate them further into areas with which I am unfamiliar.”
This extrapolation will, she avers, make a difference in her judging. The turn of phrase next taken by her expression of the aspiration to impartial and formal justice is particularly critical. After noting her doubts about the refrain, made famous by Sandra Day O’Connor, “that a wise old man and wise old woman will reach the same conclusion in deciding cases,” Sotomayor then, in what would become the most (in)famous fragment of the discourses surrounding her confirmation, stated her “hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Though it will later be deprived of its meaning through repeated mockery and disavowal – by Sotomayor as well as her congressional interrogators – consider the content of this comment, and the critical moves leading up to it, in conjunction with the feminist and antiracist theories of engaged epistemology previewed earlier. These critiques foreshadow and resonate with Sotomayor’s challenge to both the possibility and the desirability of a paradigm of reasoning as ungrounded in material experiences and ignorant of current race relations. 34 In the original speech under senatorial interrogation, Sotomayor calls into question the prototype of a unitary knowing subject whose identity is unmarked and undivided by multiple, perhaps contradictory social ascriptions and political commitments. She insists that judges remain embodied and visible, raced and gendered, and recognizes that the lives from which their judgment begins “are always present and visible in the results” of those judgments. Hence Sotomayor’s recounting of her cultural upbringing, her self-conscious positioning as a raced and gendered judge, and her admission that “our experiences as women and people of color affect our decisions.”
Additionally, Sotomayor explicitly prizes empathy as an achieved sensibility. President Obama had selected and praised Sotomayor for her capacity for empathy and her concern for the concrete effects of her rulings; 35 Sotomayor herself suggests that an empathetic perspective is achieved rather than a virtue of any particular social location. If her claim to a “better” standpoint echoes the earlier Marxian affirmations of the pure, undistorted, epistemologically privileged vantage point achieved by marginalized subjects, the whole of Sotomayor’s speech, and especially her statement that empathy is a self-conscious effort of which “many” white male justices “are so capable,” maintains a postmodern insistence that all perspectives are partial and none are privileged.
These re-publicized remarks call into question the ideal of race-blind as well as impartial legal reasoning, by reflecting on what Sotomayor terms the “perpetual tension” between the country’s celebration of ethnic difference and its paradigm of formal rights rooting equality in a presumption of sameness. This tension between the country’s celebration of diversity and constitutionalism of race-blindness comes to the fore in the political performances of the confirmation hearing.
III. The confirmation: a performative
If the saturation of the seven-week summer news cycle with Sotomayor’s polemic past remarks accomplished the unsettling of postracial impartiality’s presumptive legitimacy, her trial by Senate effectively restored the discursive (and, we will see, racial) order. It functioned as a sort of nationally visible stage on which the struggle to preserve the reigning narrative of legal neutrality played out. The restorative function of the confirmation proceedings becomes evident when they are analyzed as a performative – that is, as the reinstatement of the prevailing interpretation of objectivity as dispassionate, colorblind judgment through its incessant reiteration. Judith Butler’s theory of performativity offers a compelling framework for delineating how presumptively given ideals actively obtain and sustain their authority. While explicitly concerned with the discursive reproduction of heteronormative sex categories through their continual reenactment at the microlevel, the genealogical notions of gradual accumulation and necessary iteration of apparently given meaning that underpin performativity theory may illuminate how juridical as well as gender ideals acquire their predominance.
Butler’s theory of performativity proceeds from the premise that because any norm that informs behavior can never be perfectly embodied or conclusively achieved, it is in constant need of reference and reiteration. Terms and categories like “women” or “objective” or “colorblind” have no original, underlying meaning or ideality; the prevailing interpretation of their meaning is the “sedimented” “effect of a reiterative or ritual practice.” 36 Meaning is (trans)formed through repetitive discursive practices that Butler, following Derrida, terms citations of a law. That objectivity signifies detached, disinterested judgment rather than, say, the collaborative act of viewing from multiple perspectives alternately posited by Haraway, Hannah Arendt, and others, 37 and that colorblindness now connotes legal indifference toward the continuing socioeconomic significance of race rather than legal commitment to its decline, are not self-evident “simple facts” but rather the result of these ideals’ constant repetition in public settings and texts, by which they acquire the seemingly static status of common sense. Thus we might analyze colorblind objectivity (like femininity) as a “normative phantasm” reiterated through disperse, cumulative practices of judicial (like gender) performance.
Performativity theory’s twin tenets of power in its discursive effects, and of the reiteratively acquired authority of a particular interpretation, are useful on two fronts. Taken together, they expose the contingent and contestable formation and authority of the reigning legal norm of postracial impartiality as disembodied judgment with formally fair outcomes, and they point to the function of the performative domain as that in which this interpretation provisionally acquires its pretension to truth. To understand the enactment of power in and as discourse is to understand the Sotomayor confirmation procession precisely as a performative, as an insistent and incessant reiteration of an ideal whose credibility depends on that repeated utterance.
The function of the confirmation discourses as a provisionally successful struggle to restore the ruptured postracial metanarrative is instantiated most vividly by junior Senator Jeff Sessions’ interrogation of Sotomayor. Sessions, a white male congressman from Alabama, depicts the ideal judge’s capacity for unbiased, impersonal reasoning and questions Sotomayor’s rational abilities on the basis of her Latina identity. I read in Sessions’ skepticism, echoed by his colleagues, the implication that impartiality, as the capability of viewing from a universal perspective, is the birthright of individuals (presumptively) unmarked by (and unwilling to reckon with) their contingent social location. Its corollary is that Sotomayor embodies a sexual and ethnic particularity that prevents her from attaining an otherwise attainable position of impartiality, and from applying the law in a formalistic fashion.
In his opening remarks, 38 Sessions elaborates an allegory of a “dangerous crossroads,” drawing a “stark difference” between what he sees as the threatened tradition of judicial impartiality and its degeneration into a morally relativistic, philosophically undisciplined force and suggesting that a vote for Sotomayor would precipitate this slippery slope. Sessions structures his introduction around his vision of two potential paths down which what he views as our increasingly derailed justice system might lead. One is the tried and true trail of tradition, where the Court reprises its role as an exemplar of impersonality. “This is the compassionate system,” Sessions proclaims, “because it is the fair system.” “Down the other path” lies a new world the senator is loathe to explore, “where words have no true meaning” and justices untethered to those compassionate constraints of impartiality “are free to decide what facts they choose to see” and let their decisions be driven by their “own political or social agenda.” Entirely without irony, Sessions articulates the mythical conception of “our legal system [as] based on a firm belief in an ordered universe and objective truth.” In this system, “the trial is a process by which the impartial and wise judge guides us to truth.” Here we observe Sessions at the height of his performative, in which he derives his own authority “through the citation of the law.” Following Foucault, Butler affirms that power is not consolidated in or possessed by a subject who acts but rather exists only in its exercise; 39 so long as Sessions invokes and reiterates the eternal and self-evident trope of blind justice, he inhabits its force.
At the current “fork in the road” the senator depicts, “our system” stands to be “corrupted” by “President Obama’s view that in tough cases” a judge must exercise another form of rationality rooted in empathy and guided by a “broader vision” of the nation’s future. Should “this thinking empathy standard” gain ground, in Sessions’ nightmare scenario, laws would “lose their fixed meaning.” Sessions alludes to the judges’ robes as a sign of their disembodiment, “a symbol that they’ve got to put aside their personal biases and prejudices” and, as it were, disavow the gendered and raced particularity of their lived experience. He punctuates his opening statement with the proclamation that “I will not vote for – no senator should vote for – an individual nominated by any president who believes it is acceptable for a judge to allow [his or her] own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.” The senator invokes the term “impartiality” seventeen times in his introductory remarks and first round of questioning, and “prejudice” another ten. On multiple occasions, he will liken empathy to prejudice, implying that the terms are interchangeable and equally dangerous to formal procedural justice.
After concluding his speech, Sessions engages Sotomayor directly. 40 The C-SPAN footage of the exchange 41 offers minimal panoramic views, instead cutting alternately from two different camera lenses focused squarely on each speaker. The constant close-ups depict Sessions and Sotomayor each trading largely scripted remarks with the other, who remains unseen. The rare wide angle reveals a chamber packed with press correspondents observing and recording the proceedings. This setup, and the deliberate delivery of each monologue-in-mock-dialogue, intimates the hearing’s function as an official performance put on for a broader public, both immediate and future. On the first day of three rounds of questioning, the patent patriotism Sotomayor’s American flag-red skirtsuit rivals Sessions’ red and blue striped tie. Their Q-and-A unfolds as a sort of composed competition in which each speaker avows his and her belief in the twin legal ideals. The hearing thus functions as the stage of his recitation of the postracial impartiality imperative, and of her repeated reassurance that she shares his devotion.
Sessions’ interrogation of Sotomayor presents her with a series of opportunities to temper the incendiary tone of her past critiques and restore the narratives those remarks called into question. As he confronts her with her past affirmation of perspectival “differences resulting from experiences and heritage,” Sotomayor counters that she simply meant that judges must monitor and grapple with their biases to ensure that they do not interfere with their reasoning. “We have to recognize those feelings,” she explains, in order to “put them aside.” “I think the system is strengthened when judges don’t assume they’re impartial,” she explains, “but when judges test themselves to identify when” their experiences, rather than the supposedly self-evident logic of the law, “are driving the result.” This early moment of the hearing marks Sotomayor’s strategic break with her fleeting critical legacy, affording her a public opportunity to affirm that if partial perspectives arise out of experience, they are separable from the reasoning process. Impartiality for her, now, is a self-conscious process of recognizing her experientially grounded perspective and the empathy with which it endows her, but not allowing it to affect, so to speak, her reasoning. Here impartiality, in her words, “is understanding that the law is what commands the result” of that process. Thus Sotomayor uncouples rationality from positionality.
Sotomayor retreats still further when she exempts her questioner from reckoning with the particularity of his own perspective. When Sessions indignantly asks Sotomayor whether he shares the obligation to be self-reflexive – “Do you stand by your statement that my experiences affect the facts I choose to see?” – the nominee responds with a deferent “No, sir” and reassures him that the law “would command you to the facts that are relevant to the disposition of the case.” Struggling to pronounce “Latina” and rendering “wise Latina” in his southern drawl, Sessions rereads her now infamous statement from a transcript. Upon his request that she reconcile her repeated assertions that “impartiality is a near aspiration which may not be possible” with the professional oaths of objectivity she has taken in the past, Sotomayor apologetically abandons her earlier claim to a situated epistemology by declaring it “a rhetorical flourish that fell flat.” “It was bad,” she concedes, and calls it a faulty “play,” bluntly revoking her earlier insistence that knowledge and perspective are grounded in experience.
In a subsequent round of questioning from Republican faithful Orrin Hatch, who will tow the party line by voting against her confirmation, Sotomayor again disowns her remark that “the aspiration to impartiality is just that.” When Hatch asks her whether she “believe[s] that transcending personal sympathies and prejudices is a duty or an aspiration,” Sotomayor elliptically resounds “the obligation of judges to monitor themselves” before succinctly delivering the line he, and her less immediate audience, long to hear: “It’s absolutely a duty, Senator.” Epistemological musings aside, “it is always a duty to impartially decide the case before you.” In the same way, when Iowa senator Chuck Grassley worries aloud, “Isn’t justice supposed to be blind?,” Sotomayor will reassure him that she does not believe that judges should allow their “personal feelings” to “influence their outcomes” or that “they should consider the gender, race, or ethnicity of any group that’s before them. I absolutely do not believe that.” Again, she reiterates that the “goal of justice [is] to be impartial;” “that is the central role of a judge. The judge is the impartial decision-maker … I do believe in those things absolutely.” 42
Here we observe the performative as both discursive modality and domain of power: in it, power operates both in and as discourse. That is, power is both invoked and incarnated in verbal and bodily statements. To “cite the law” is to advance the power of both the law and the speaker: it is an exercise or enactment of power that also reinstates the power of the law invoked. 43 Thus in her reverent avowal of postracial impartiality, the prevailing legal paradigm, Sotomayor strategically inhabits a discourse of power, reinforcing its normative authority while simultaneously invoking that authority to isolate herself from accusations of deviance or disbelief.
In the process of affirming her shared belief with Sessions that the only just mode of constitutional interpretation is colorblind and dispassionate, Sotomayor participates in restoring these co-operative ideals to the status of truth and legitimacy. This restoration depends precisely on reiteration: a performative succeeds, always and only provisionally, “because that action echoes prior actions, and accumulates the force of authority through the repetition or citation of a prior, authoritative set of practices.” 44 Promptly taking all cues supplied by her partisan interrogators, Sotomayor reifies the reign of postracial impartiality by repeatedly declaring its authority. Her performance manifests Butler’s insight that “performative acts are forms of authoritative speech” whose “binding power” is derived “through the citation of the law.” Butler notes of the capacity of discourse that “It is the law!” is an “utterance that performatively attributes the very force to the law that the law itself is said to exercise;” 45 the same can be said of Sotomayor’s injunction to formal race-blind reasoning.
IV. Analysis: performing power in the postracial state
Here in the confirmation discourses, then, we see how the civic performative practice of reinscribing postracial legal ideals, and Sotomayor’s participation in the reconstruction of these narratives previously ruptured by her own commentary, play out. The nominee’s self-reproaching retreat from her candid critiques and her ardent reiteration of the vitality of judicial impartiality cover over any fractures caused by her earlier remarks; in preserving this metanarrative, she preserves her own political viability.
The proceedings manifest the Sotomayor confirmation hearing as a site of public discourse and, as such, a consequential site of power. Crenshaw and Peller remind us that “law in general and the courtroom in particular” are “arenas where narratives are contested and the power of interpretation exercised. In that sense the legal realm is a political realm.” 46 The confirmation hearing, which we could alternatively and more aptly term Sotomayor’s trial by the Senate judiciary committee, figured as a political realm, then, in a dual sense: it was the site not only of a partisan battle to stall a presidential appointment, but also of a struggle to restore the legitimacy of the ideal of a colorblind and dispassionate court system compromised by her “wise Latina” contestation.
If the event staged a discursive space in which both immediate personal and broader social power arrangements were at stake, how, precisely, were these power relations teased out rhetorically? First, the confirmation discourses demonstrate how critiques that call given power arrangements into question can be diluted and distorted. Crenshaw and Peller’s notion of narrative disaggregation illuminates how the repetition and reinterpretation of Sotomayor’s critical remarks during the hearing functioned to dislocate and dissemble the substance of her critique, stripping it of its critical purchase and reducing it to a silly, and reprehensible, slip of the tongue. This theory explains how, at trial, alternative legal narratives offered by the prosecution or defense can distort texts that testify to racial power by divorcing them from their social context and historic meaning. This tactic decontextualizes critical events “in both space – where things happened, and between whom – and time – what larger forces operated to give events their meaning.” 47 Through a patronizing (and participatory) process of reiteration and resignification, the Supreme Court nominee’s words were rendered mistaken. Although Sessions proclaims that he has not taken Sotomayor’s pre-nomination speeches “out of context,” Sotomayor in response refers explicitly to the distortion of another of her other past commentaries in its reduction to a 90-second sound bite. She asks that her remark be “heard outside the minute and a half that YouTube presents and its full context examined.” Later, Sotomayor states that she “did not intend to suggest” that she endorsed partiality in the Berkeley lecture and that “the point [she] was making” is clear when considered “in the wider context.”
Second, we see how public political figures reinscribe legal norms that are perennially open to contestation by repeatedly insisting on their veracity and eternality, and how they do so in order to preserve the norms that sustain and conceal their own power. Through the lens of performativity theory, Sessions’ opening ode to objectivity and his incessant glorifications of impartiality throughout the hearing appear as instances in which he protects his own power precisely by refortifying the prevailing interpretation of objectivity as detached, dispassionate judgment. Feminists have pointed out the nostalgia implicit in these rhetorical gropes for “an ordered universe and objective truth.” In a Butlerian reading, his repetitions betray a certain longing for that interpretation or normative “law” to be fixed beyond a doubt. “It is the law!” is “a sign of allegiance to the law, a sign of desire for the law to be the indisputable law,” an impulse “to put out of play any criticism of” or anxiety about its “final authority.” The citation imposes “a limit to the social, the subversive, the possibility of agency and change, a limit that we cling to” as “the final defeat of our own power” to resignify the terms of justice. 48
We also observe, in the confirmation hearing discourses, Goldberg and Haney López’s predictions that in a purportedly postracial era, the charge of racism can be redirected by those in power against people historically victimized by it. Seven times in his opening remark and first round of questioning, Sessions indicates that he is deeply “troubled” or sincerely “concerned” by Sotomayor’s proclivity to racial bias. The tragic irony of this accusation derives from the fact that Sessions himself is a former federal prosecutor whose own 1986 nomination to the federal bench was blocked by the Senate judiciary committee due to his deliberate aversion to pursuing civil rights cases pertaining to racially motivated voter fraud in Alabama during his tenure as U.S. attorney. At Sessions’ confirmation hearing before the committee, several members of the Department of Justice testified that Sessions had made racist comments and disparaged the National Association for the Advancement of Colored People (NAACP) in their presence. The crucial committee vote was cast by Alabama senator Howell Heflin, who upon hearing testimony concluded that there were “reasonable doubts” over Sessions’ capacity to be “fair and impartial.” (In a final ironic twist, only three months before Sotomayor’s confirmation hearing, Sessions reprised Heflin’s role as the committee’s ranking Republican.) 49
The repeated instances of Senators Sessions, Hatch, and Grassley vocally suspecting Judge Sotomayor of prejudice are instances of dramatic irony at its best – a dramatic irony aptly captured in a July 2009 Daily Show spot 50 purporting to substantiate conservative pundits’ assessment of Sotomayor as a “racist.” In the clip, correspondent Wyatt Cenac leads Jon Stewart’s audience on a vicarious journey to the scene of Sotomayor’s childhood – the “exclusive lily brown gated community” better known as the Bronxdale houses in that borough’s red brick projects. In light of Crenshaw and Peller’s affirmation that legal discourses enacted in official settings are saturated with power dynamics, Sessions’ declaration that “empathy” and “prejudice” are “akin to politics” and that “politics has no place in the courtroom,” 51 an attempt to depict the juridical realm as uncolored by interests and sentiment, seems at best naïve and at worst a reverse accusation of racism. And in light of Wendy Brown’s suggestion that if hyperbolic assertions of reiteratively naturalized norms are occasioned by – and symptomatic of – their own unraveling, a metanarrative requires its most vigorous affirmation precisely when its premises are called into question, 52 Sessions’ insistences bear traces of desperation in his struggle to safeguard the established racial order.
We see here, too, how Sotomayor’s insistence on her capacity for disembodied rationality amounts to a disavowal not only of her critical insight that reason is unavoidably affected by lived experience but also, relatedly, of her own embodiment, her engendered and ethnic(ized) body. This second disavowal is implicit in the first: to claim the ability of universal reason is to claim an unmarked, innocent positionality. Her performative recalls the late cultural critic Michael Rogin’s ingenious (psycho)analysis of the first audible film, The Jazz Singer, which elaborates how performance can function as a vehicle for American ethnics to assimilate to whiteness and repress their otherness. Both the producers and the protagonist – the performer, Al Jolson, and his fictional alter ego, Jack Robin – achieve upward mobility by disassociating themselves from blackness (in this case, through caricature of blackness rather than mimesis of whiteness). 53 Before and during her confirmation hearings, Sotomayor was hailed by the press and politicians as the first woman of color to reach the country’s highest court, but her own words finally declare her race and gender irrelevant to her own impartial judgment. This sort of disavowal of embodied particularity and claim to universal positionality sustains a tension both Sotomayor and critical race scholars have articulated between celebrations of our country’s ethnic diversity and calls for the state and its laws to be silent about and blind to racial difference. 54
Thus the moment of the confirmation paradoxically marks the simultaneous affirmation of difference and restoration of the norms that maintain white male dominance. Unpacking this paradox will permit us to specify the implications, abstract and concrete, of the provisional success of the confirmation drama – and its comedic counterpart, the swearing-in ceremony – as civic performatives. To assess the success of this performative is to account for how the norms it restored continue to co-operate ideologically. Following Young and Eduardo Bonilla Silva, I understand an ideal to function as an ideology “when belief in it helps reproduce relations of domination or oppression by justifying them” or by inhibiting our imagination and institution of “more emancipatory social relations.” 55 In this light, the legal metanarrative of postracial impartiality works ideologically to legitimate the unrepresentative composition of legal institutions, to rationalize the uneven effects of the policies such institutions enact and uphold, and thereby to obscure and perpetuate ongoing social disparities.
First, the notion of universality pervading both ideals of objective and colorblind judgment works “precisely to inhibit universal inclusion and participation.” 56 The assumption of universal perspective as a vantage point that any subject can occupy rationalizes the unrepresentative composition of judicial institutions: if affluent straight white men can access an objective viewpoint, they can adequately represent and arbitrate between all citizens. So long as we assume decisionmakers are impartial and capable of comprehending all perspectives, we have no reason “to make an explicit issue of the just organization of decisionmaking power,” 57 or to demand decisionmaking bodies that are presumably substantively enriched by descriptive diversity. 58 Thus, the postracial impartiality imperative legitimates exclusionary decisionmaking processes, deflecting demands for state institutions that encompass a broader variety of participants.
But moreover, and more likely, in a quintessentially postracial twist, the descriptive diversification of state institutions can be accomplished without any revision to its epistemological norms or substantive commitments. The contemporary incitement to colorblind objectivity enables exactly this: by deeming all people capable of universal reason while still defining reason as the denial and repression of difference, the state can simultaneously celebrate the diversity of its actors and consign them to a paradigm of reasoning that maintains existing structures of power and privilege. By doubly accomplishing the coloring of the Court and securing verbal commitment to impartial judgment, the Sotomayor confirmation perpetuates this pernicious paradox.
Thirdly and finally, this very propensity of the impartiality ideal to universalize the particular bolsters the notion of the neutral state, which in turn sustains the current unequal social arrangements. Like the narrative of colorblindness, which celebrates formal equality and absolves itself of responsibility for remedying social disparities, the impartiality ideal enables the conceptual dichotomy of the public realm of the state and the private realm of partial interests. It envisions a state that stands above and apart from civil society, “overseeing and refereeing” interpersonal competition and conflict.
The image of the state as an “umpire” mediating private relations it played no part in structuring is the hallmark of this myth, 59 and not surprisingly, the term has become something of a trope with an increasingly extensive ancestry in public discourses surrounding Supreme Court politics. In his opening remarks before the Senate during his own confirmation hearing in 2005, current chief justice John Roberts compared the umpire, as impartial arbiter, to the consummate judge, explaining that “umpires don’t make the rules; they apply them.” Like the umpire, the judge plays the “critical” role of “mak[ing] sure everybody plays by the rules. But it is a limited role,” Roberts notes. “Nobody ever went to a ball game to see the umpire.” 60 In a 2007 campaign speech, President Obama stridently rejected the metaphor of the judge as umpire who makes tough calls according to clear rules and without regard to their impact on the outcome of the “game.” While outlining “the criteria by which [he would] be selecting [his] judges,” Obama deemed sound intellect and fidelity to precedent necessary but insufficient qualifications, calling application of preexisting case law (analogously, established legal “rules”) “pretty” straightforward “95 percent of the time,” but avowed that the fate of the fraction of cases that “really count” hinges instead upon “what is in the justice’s heart.” 61 Obama thus purposely invoked this trope as an inadequate and disingenuous standard, while Sessions alludes to it as precisely the proper judicial ideal Roberts had deemed it when, in his opening remark, he suggests that Sotomayor favors “an approach to judging” in which “the umpire calling the game is not neutral, but instead feels empowered to favor one team over another. Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it’s not law.” 62
This metaphor of an impartial arbiter functions ideologically insofar as it presumes as given the patterns and relations of distribution structuring civil society and perpetuates these arrangements through policies that are facially neutral. So long as there persist significant disparities of power, resources, and privileges among different social factions, postracial policies that are “impartial” in the sense of extending equal formal opportunity to all – that are compassionate in their dispassion, Sessions might say – will systematically “yield outcomes in the interests of the more powerful,” 63 even regardless of the personal intent of their adherents. 64
Most importantly, then, the multiple paradoxes coalescing in the postracial impartiality imperative spell concrete repercussions for the national racial order. By strategically asserting her commitment to and capacity for impartial adjudication, and thereby aspiring to a normative, presumptively innocent subject position espoused by people who remain uncritical of ascriptive privilege, Sotomayor similarly gains status and breaks one of the last standing political barriers. She effectively disavows her raced and gendered embodiment and pledges allegiance to a legal ideology that refuses to recognize their material relevance. Paradoxically, and perhaps tragically, the very performative mechanism that propels her to an historically exclusive state office, that enables her professional mobility and our national milestone, may keep people of color with whom she identifies “fixed in place” in a disparate racial order. 65 Rogin “call[s] attention to the role of performance in creating individuality” while also ironically “expos[ing] the imprisoning structure of the performative.” 66 In Butler’s words, Sotomayor can only reiterate the postracial impartiality ideal by “embodying the norms of the power she opposes.” 67 Performativity’s double edge dooms its deployment for both creative self-fashioning and structural racial reification.
The co-operation of objectivity and colorblindness as dominant legal discourses thus serves the dual interests of sociopolitically dominant groups. If we co-articulate feminist and critical race theory to account for the denials of gender and race built into a legal regime that idealizes reason as disembodied and justice as blind to racial disparities, we arrive at an intersectional analysis of a state whose procedural norms and social structures continue to reinforce white male power and privilege. This state can glorify diversity while perpetuating procedural standards devised for and by (mainly) white men. The diversely constituted but procedurally race-blind state can purge itself of its guilt and dissociate from its discriminatory past; it can preserve those norms and structures that perpetuate existing hierarchies with a new, safe, ingenious and seemingly transparent lexicon of multiculturalism and ethnic pluralism. 68
V. The price of the ticket
The confirmation may have instantiated a moment of political realism. Sotomayor goes from being refreshingly honest about, if not radically critical of, the impossibility of denying her affected subjectivity to parroting the ideality and achievability of impartiality. In this episode, we sense the subversive potential of Sotomayor’s critique of state objectivity being censored and converted into her own starring role in the shoring up of that myth. Perhaps this performative signals that she is willing to pay the rhetorical price to secure a seat on the Court so that she might effect a paradigm shift once in power. It is as if her ascent to the Supreme Court required a closing of ranks, as if her historical breakthrough came at the cost of her endorsing Sessions’ delusion that compassionate justice requires dispassionate, socially dislocated decisionmaking. Her perfunctory repetition of the myths appears as a politically necessary move. 69 Momentarily ruptured in the publicity surrounding Sotomayor’s nomination, the predominant narratives of disembodied judgment and de-raced justice are restored under conditions of professional pressure, personal ambition, and strategic practicality.
We have reason to reconsider, then, what has been celebrated as a sign of collective national progress and an individual instance of the American dream. In the final analysis, at least as much was lost as gained in Sotomayor’s ascent to the Supreme Court. If Sotomayor’s new position of authority, attained through a pragmatic disavowal, offers her a public platform from which she might rearticulate a critique of postracial posturing, the role she played to reach that platform refortified those myths. If the country watched a female minority rise to a position of state power, we witnessed her doing so by assimilating to the moral, epistemological, and legal norms of that power. In a way, Sotomayor bought her seat by abandoning her critical posture and her claim to an embodied, experientially affected perspective. And in a way, while the gender and the color of the Court have changed, its jurisprudential paradigm has not. In fact, we have seen how ideals of legal rationality that work ideologically largely in the service of white male power can be reinscribed precisely as they open their ranks to a woman of color. The confirmation proceedings provided a national stage on which those ideals, and the relations of power they obscure and perpetuate, were reinstated. Given the cost at which it comes, Sotomayor’s confirmation is no unqualified victory.
Footnotes
Acknowledgements
I thank Christine Di Stefano, Naomi Murakawa, Michael McCann, and especially Jack Turner for the time, insight, and guidance each has lent to this project in particular and to my scholarly development in general. I also thank Austin Sarat and an anonymous reviewer at Law, Culture and the Humanities. Earlier versions of this essay were presented at the 2010 Western Political Science Association meeting and the 2010 Women of Color Collective conference at the University of Washington; I am grateful to each of these venues.
1.
“Justice Sonia Sotomayor Sworn in As Supreme Court Justice,” C-SPAN, August 8, 2009. http://www.youtube.com/watch?v=032K9yzRevA&feature=related (last visited October 7, 2010).
2.
Carol J. Greenhouse analyzes the “racial entailments,” performative dynamics, and partisan politicking of the Sotomayor confirmation proceedings from an anthropological perspective in “Judgment and the Justice: An Ethnographic Reading of the Sotomayor Confirmation Hearings,” forthcoming in Law, Culture and the Humanities.
3.
While this article focuses on the ways the legal metanarrative of colorblind objectivity rationalizes and reinstates raced and gendered norms and power arrangements, it does not mean to slight valuable recent critical and legal scholarship that has teased out the multiple dimensions of subordination that are mutually constitutive of race and gender, among them ability, heteronormativity, wealth, weight, nationality, and citizenship. To be sure, the ideal of disembodied and colorblind legal reasoning affects, in complex and various ways, people who experience forms of oppression in addition to those based on race and gender. I attend primarily to retrenchment of masculine norms and racial order because in my analysis, these issues are most salient to, and most vividly illustrated by, the particular circumstances of the Sotomayor confirmation process. Rich accounts of other forms of legal subordination and exclusion include David Engel and Frank Munger, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (University of Chicago Press, 2003); Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press, 2008); Anna Kirkland, Fat Rights (New York University Press, 2008); Anna Kirkland, “Victorious Transsexuals in the Courtroom: A Challenge to Feminist Legal Theory,” in Law and Social Inquiry 28 no. 1 (2003), pp. 1–37; and Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton University Press, 2005).
4.
Eduardo Bonilla Silva, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States (Boulder: Rowman and Littlefield, 2010), p. 2.
5.
Iris Marion Young, Justice and the Politics of Difference (Princeton University Press, 1990), p. 96. Young frequently revisits this critique of norms of judgment and inclusion in Inclusion and Democracy (Oxford University Press, 2000). For an insightful recent consideration of the vitality of sentiment to judgment and the possibility of affected yet impartial rationality, see Sharon Krause, Civil Passions: Moral Sentiment and Democratic Deliberation (Princeton University Press, 2008).
6.
Op. cit., pp. 99–100.
7.
Op. cit., pp. 103–104.
8.
Op. cit., p. 109.
9.
“Metaphorics of vision” is Daniel Conway’s artful turn of phrase. Conway, “The Slave Revolt in Epistemology,” in Feminist Interpretations of Friedrich Nietzsche, eds. Kelly Oliver and Marilyn Pearsall (University Park: Pennsylvania State University Press, 1998), pp. 252–81.
10.
A sampling of the feminist standpoint theory literature would include Patricia Hill Collins, Black Feminist Thought (New York: Routledge, 2008); Donna Haraway, Simians, Cyborgs, and Women (New York: Routledge, 1990); Sandra Harding, The Science Question in Feminism (Ithaca: Cornell University Press, 1986); Nancy Hartsock, Money, Sex, and Power: Toward a Feminist Historical Materialism (Boston: Northeastern, 1985); Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge, MA: Harvard, 1991); and Chela Sandoval, Methodology of the Oppressed (Minneapolis: University of Minnesota Press, 2000).
11.
Young, Justice, p. 116.
12.
“Angle of vision” is Patricia Hill Collins’ term. Collins, Black Feminist Thought.
13.
Hartsock, Money, Sex, and Power, p. 232. Hartsock qualifies her original formulation of feminist standpoint theory in light of subsequent scholarship in The Feminist Standpoint Revisited and Other Essays (Oxford: Westview Press, 1998), p. 239.
14.
Haraway, Simians, Cyborgs, and Women, p. 187.
15.
Op. cit., p. 191. Wendy Brown offers one such incisive diagnostic of modernist feminist standpoint theories, cautioning against rooting claims to true knowledge in powerlessness and clinging to “epistemological foundations” as an effective entrenchment of contingent social identity formations. States of Injury: Power and Freedom in Late Modernity (Princeton University Press, 1995), pp. 30–51.
16.
Haraway, Simians, Cyborgs, and Women, pp. 195–6.
17.
Kimberlé Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” in Harvard Law Review 101 (1998), pp. 1381–7.
18.
Ian Haney López, White By Law: The Legal Construction of Race (New York University Press, 2006), pp. 157–9; Haney López, “‘A Nation of Minorities’: Race, Ethnicity, and Reactionary Colorblindness,” in Stanford Law Review 59, no. 985 (2007), pp. 985–1064; David Theo Goldberg, The Racial State (Malden: Blackwell, 2002), p. 201.
19.
Michel Foucault, “Nietzsche, Genealogy, History,” in The Foucault Reader, ed. Paul Rabinow (New York: Pantheon, 1984), pp. 76–100. Pamela Brandwein offers a helpful guide to mapping contestatory processes of legal meaning-making in Reconstructing Reconstruction (Durham, NC: Duke University Press), pp. 191–5.
20.
Haney López, White By Law, p. 158.
21.
Karl Marx, “On the Jewish Question,” in Marx: Selected Writings, ed. Lawrence Simon (Indianapolis: Hackett, 1994), pp. 7–8. For an extended analysis, see Brown, States of Injury, pp. 96–134.
22.
Crenshaw, “Race, Reform, and Retrenchment,” p. 1370, p. 1381.
23.
Haney López, White By Law, p. 125.
24.
Goldberg, The Racial State, p. 212, p. 219.
25.
Crenshaw, “Race, Reform, and Retrenchment,” p. 1348.
26.
Silva, Racism without Racists, p. 4.
27.
Goldberg, The Racial State, p. 230.
28.
By “whites” I mean to refer to a dynamically defined, sociopolitically dominant racial group whose construction is “contingent, changeable, partial, inconstant, and ultimately social,” as emphasized by, among others, Haney López, White By Law, pp. xxi–xxii.
29.
Goldberg, The Racial State, pp. 223–4.
30.
Haney López, White By Law, p. 126, p. 110.
31.
Haney López identifies as the three central coexistent elements of the postracial state: continued racial dominance by whites, an expansion of the umbrella of socially constructed whiteness to encompass additional American ethnics, and a colorblind ideology that proclaims a commitment to antiracism while preventing effective racial remediation. White By Law, pp. 147–8, p. 156.
32.
Delays designed to secure extra time for Senate judiciary committee members to pay homage to impartial justice are commonplace. See Keith Bybee, All Judges Are Political Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010), p. 12.
33.
34.
Some may object that my reading of this lecture overstates the extent to which Justice Sotomayor is critical not only of the possibility but also of the desirability of colorblind jurisprudence. Indeed, Sotomayor affirms that she owes the constituents whom her decisions concretely affect “constant and complete vigilance in checking [her] own assumptions, presumptions and perspectives.” I am grateful to an anonymous reviewer at Law, Culture and the Humanities for bringing this alternative interpretation to my attention. However, Sotomayor’s explicit concern that denying experientially grounded differences in legal reasoning may disserve both law and society, quoted above, implies her doubt about the desirability of colorblind jurisprudence.
35.
In his nomination speech, the president implied his preference for an enhanced paradigm of judicial reasoning that explicitly values empathy. He proclaimed that the experience of encountering and overcoming disadvantages and misfortunes “can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live” and deemed this sort of empathy-engendering experience “a necessary ingredient in the kind of justice we need on the Supreme Court.” Obama elaborated both the personal and professional dimensions of Sotomayor’s experience, characterizing her as a discerning intellectual whose involvement with almost every tier of the national court system endows her “with a depth of experience and a breadth of perspective that would be invaluable” and unmatched on the current court. “Text: Obama’s Remarks on His Choice of Sotomayor,” New York Times, May 26, 2009. 
(last visited October 7, 2010).
36.
Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” (New York: Routledge, 1993), p. 10.
37.
Haraway argues for a “doctrine and practice of objectivity” that acknowledges rationality as an embodied enterprise, requires self-critical partiality, and demands interactive deliberation joining “partial views and halting voices into a collective subject position”: Simians, Cyborgs, and Women, p. 196. Hannah Arendt, likely following Nietzsche, writes that “reality ris[es] out of the sum total of aspects presented by one object to a multitude of spectators. Only where things can be seen by many in a variety of aspects …, so that those who are gathered around them know they see sameness in utter diversity, can worldly reality truly and reliably appear.” The Human Condition (University of Chicago Press, 1998), p. 57. See also Conway, “The Slave Revolt in Epistemology.”
38.
“Transcript: Sen. Jeff Sessions (R-Ala) Opening Statement,” Washington Post, July 13, 2009. http://www.washingtonpost.com/wp-srv/politics/documents/sessions_openingstatement_sotomayor.html (last visited October 7, 2010); “Part 1 Sotomayor Opening Statement,” YouTube, http://www.youtube.com/watch?v=0Y-YyG2a_rg (last visited October 7, 2010); “Part 2 Sotomayor Opening Statement,” YouTube, July 13, 2009. http://www.youtube.com/watch?v=-FG5G5BzJc0&feature=channel (last visited October 7, 2010).
39.
Judith Butler, Antigone’s Claim: Kinship between Life and Death (New York: Columbia University Press, 2000), p. 21.
40.
41.
“Questioning Part 1,” YouTube, July 14, 2009. http://www.youtube.com/watch?v=Uc0EMkwmH3s&feature=channel (last visited October 7, 2010).
42.
43.
Butler, Antigone’s Claim, p. 10.
44.
Butler, Bodies That Matter, pp. 225–6.
45.
Butler, Antigone’s Claim, p. 21 (emphasis Butler’s).
46.
Kimberlé Crenshaw and Gary Peller, “Reel Time/Real Justice,” Denver University Law Review, 70 (1992–1993), pp. 283–96, p. 286.
47.
Op. cit., p. 290 (emphasis Crenshaw and Peller’s).
48.
Butler, Antigone’s Claim, p. 21 (emphasis Butler’s).
49.
Carl Hulse, “For Alabama Republican, an Unlikely Role Looms,” New York Times, May 9, 2009. http://www.nytimes.com/2009/05/10/us/politics/09web-hulse.html?_r=1&ref=jefferson_b_sessions_iii (last visited August 1, 2010); “Specter Helped Defeat Sessions in 1986 Judiciary Vote,” National Public Radio, May 5, 2009. (last visited August 1, 2010).
50.
51.
“Transcript: Sen. Jeff Sessions (R-Ala) Opening Statement,” Washington Post.
52.
Brown, States of Injury, p. 139.
53.
Michael Rogin, Blackface, White Noise: Jewish Immigrants in the Hollywood Melting Pot (Berkeley: University of California Press, 1996), p. 90, p. 97.
54.
Throughout this article I have referred to Sotomayor’s ethnicity and to a hierarchical national racial order. I am sympathetic to Haney López’s argument that critical legal theorists provisionally retain the language of race regarding Latino groups on the grounds that “the general abandonment of racial language and its replacement with substitute vocabularies, in particular that of ethnicity, will obfuscate key aspects of Latino/a lives” in a highly racialized American society. Haney López, “Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory,” in California Law Review 85 (1997), pp. 1143–1211, p. 1152. I use the terms “race” and “ethnicity” interchangeably to imply that references to Latinos as an ethnic category must be supplemented with accounts of systematic and entrenched inequalities between white Americans and Latinos, which the language of race more adequately enables. To be sure, different groups experience racialization differently. A sampling of recent literature on differential or comparative racialization might begin with Special Topic: Comparative Racialization, in PMLA 123 no. 5 (2008); Neil Gotanda, “Comparative Racialization: Racial Profiling and the Case of Wen Ho Lee,” in UCLA Law Review 47 (2000), pp. 1689–703; Grace Hong and Roderick Ferguson, eds., Strange Affinities: The Gender and Sexual Politics of Comparative Racialization, forthcoming from Duke University Press; and Claire Jean Kim, “Unyielding Positions: A Critique of the ‘Race’ Debate,” in Ethnicities 4 no. 3 (2004), pp. 337–55.
55.
Young, Justice, p. 115. See also Silva, Racism without Racists, p. 9, p. 26.
56.
Young, Justice, p. 105.
57.
Op. cit., p. 115.
58.
Though I do not wish to equate judges to elected officials, I find Katherine Tate’s distinction between descriptive and substantive representation helpful. Tate, Black Faces in the Mirror (Princeton University Press, 2003), pp. 3–22.
59.
Young, Justice, pp. 112–14.
60.
61.
62.
“Transcript: Sen. Jeff Sessions (R-Ala) Opening Statement,” Washington Post.
63.
Young, Justice, p. 114.
64.
Op. cit., p. 116.
65.
Rogin, Blackface, p. 100, p. 112.
66.
Op. cit., p. 118.
67.
Butler, Antigone’s Claim, p. 10.
68.
Goldberg, The Racial State, pp. 206–7.
69.
Perfunctory is the operative word. Bybee, All Judges are Political, has recently argued that such stock paeans to the impartiality imperative are not so much genuine avowals that judicial decisionmaking is hermetically insulated from political pressures and partisan dynamics – far from it – as functionally necessary affirmations that legitimate the court system as a just forum for dispute management. While this paper questions Bybee’s assertion that “law remains a medium in which truly impartial reasoning may occur” (p. 86), it supports his premise that legal processes are “centrally concerned with creating appearances of principle and impartiality” (p. 96) and illustrates his argument that the law “is the handmaiden of the existing order” (p. 98), not least the racial order (p. 67).