Tag Archives: sonia sotomayor

No one asks why there are no women

In the wake of Susan Rice’s nomination for Secretary of State being replaced with Senator John Kerry and the selection of former Senator Chuck Hagel for Secretary of Defense in the place of Under Secretary of Defense for Policy Michèle Flournoy, there’s the beginnings of a discussion in the US about why there’s so few women (and less frequently mentioned, people of color) in high level cabinet positions in the Obama Administration. Unfortunately, it doesn’t seem that we’re willing to acknowledge the causes for this and instead lay the blame at the administration’s feet.

There’s much to be said about how fundamentally flawed this narrative is. Others have excellently point out that “feminism is more than a headcount” and that taking a bold stance against oppressive narratives requires something more profound than advancing marginalized groups into positions of social and political prominence. After all, Obama’s elections didn’t end racism. Clinton’s candidacy for the same position and tenure as Secretary of State likewise didn’t solve sexism. Keith Ellison’s and Andre Carson’s role in Congress hasn’t erased islamophobia. The glass ceiling hurts, but it’s not the entire problem. It’s more the tip of the iceberg that’s most obvious from the outside.

Beyond that necessary stipulation, it’s worth noting that the Obama administration has advanced the cause of representation of marginalized groups in many profound ways, including serious consideration of transgender applicants for various positions. That’s a group that has been incredibly overlooked by past administrations which the Obama Administration has opened its doors to.

But even after pointing out both of those issues, even Obama’s most hardcore supporters have to admit that the highest echelons of power, even under his leadership, are very White, very male, very straight, and extremely cisgender. The problem of course, is that this is expressed as being his fault or more broadly an impact of his administration. Even a quick examination of comparatively powerful women, people of color, and especially women of color that his administration has sought to advance should disabuse anyone of that notion, however.

(Hmmmm. Wonder what other broadly defined social experiences these four might have shared? Photos from here, here, here, and here.)

Yes, there are too few women in his cabinet and in leadership positions elsewhere in the government, but that’s because of fabricated accusations against former Rural Development director Shirley Sherrod that she was withholding resources from White farmers, conspiracy theories against Attorney General Eric Holder that he was providing arms to criminal people of color, a firm belief that US ambassador to the UN Susan Rice is covering up something about the assassination of a White man in Benghazi, and an interpretation of one of Justice Sonia Sotomayor’s comments about racism as evidence that she would “discriminate against White people“. Those incidents were pretexts to force the firing of Sherrod, to hold of Holder in contempt of congress, to explain the denial of a higher position to Rice, and to legitimize a campaign against Sotomayor’s nomination.

In the context of those and similar incidents, it’s small wonder why the current government is having a hard time placing many women, people of color, and other marginalized people in positions of power – because their capacity to fulfill the duties of those positions is categorically doubted by Republicans in Congress, who’ve opposed their nominations to, advancements within, or continuations of high level service to the government. You want to hold some one responsible for underrepresenation in Obama’s cabinet? Let’s start with the people who are trying to systemically deny positions to people based on bigotries against their race, gender, and other factors.

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Let’s talk about demographics

Yesterday, the Supreme Court of the United States heard its first arguments in a case that has the potential to overturn the 2003 Grutter decision. That case upheld the legality of affirmative action in education, provided it not be part of a rigid quota system and instead holistically look at the social and academic benefits of a diverse student body. Much of the (inadequate) reporting on the case has focused on the demographics of colleges and universities in Texas (like the one currently being sued), but with minimal or no evaluation of how the demographics of the Supreme Court might impact decisions. Considering the national freak-out over the sudden lack of Protestant justices compared to the current silence over six White justices evaluating the usefulness of affirmative action, there’s something to be said about what identities are valued on the court. It’s worth noting as well, it would be seven White justices considering this case if not for Elena Kagan recusing herself on grounds of working on the case before her appointment. While the absence of Protestants is noticed and criticized, the disproportionately low representation of female justices and justices of color is treated as an irrelevancy, even on a case that clearly and profoundly changes their relationship with the larger society.

Reviewing Grutter is actually quite instructive here. The case, like many in the past decade, was decided by a narrow 5-4 margin, with justices O’Connor, Stevens, Souter, Ginsburg, and Breyer forming the majority opinion. All of the female justices agreed that a holistic evaluation of a student applicant may include components of their identity, most obviously race, but often also their sex and gender – noting that those traits significantly shape an individual’s interaction with the larger world. In short, excluding those factors would produce at best a partial view of the candidate. It’s also worth noting that both of the Jewish justices (Ginsburg and Breyer) sided with the decision which held up a flexible, rather than quota-based affirmative action system. That seems rather straightforward as within living memory at the time, Jewish students had faced restrictive quotas at a variety of institutions. Before I get ahead of myself, it’s undeniable that the identities of Supreme Court justices by no means determine their votes even on issues overtly related to race, gender, or sex. Justices John Stevens and David Souter upheld affirmative action, although neither were Jewish, female, or people of color. Likewise, justice Clarence Thomas filed the most vehement dissent (along with Antonin Scalia), although he is Black.

Still, it seems worth noting that the backbone of support for affirmative action in Grutter derived from justices belonging to marginalized social groups – whether as a result of their sex, gender, or ethnic background. From that perspective, they perhaps more easily saw the need for promotion of diversity and an evaluation of candidates’ entire life experience. A similar dynamic seems to be unfolding in the case currently before the court, as opinions seem to largely break down along sexual and ethnic lines. The only Latin@ justice to ever serve on the court (Sotomayor) and the three current Jewish justices (or in Kagan’s case, her successor) form the block against overturning Grutter and the four White and non-Jewish men sitting on the court seem to be in favor of striking down affirmative action. The deciding vote falls into justice Thomas’s  lap, and he’s made his comparatively unusual opinions on this already known.

Of course, it’s worth noting that if the court actually reflected the American public in terms of gender and race, there would be one fewer White, non-Jewish man on the court. As the 2010 Census reported, 63.7 percent of the US population is made up of “non-Hispanic Whites”, of which 49 percent are male. That works out to about 31% of the US population being “non-Hispanic” White men, meaning that having a third of the court be comprised of them would be the closest representation of the larger population. Working with only three votes from that demographic which is uniquely opposed to these policies, the likelihood of passing this sort of a law would much lower, as it’s dependent on two not just one of the justices from other demographic groups having atypical opinions on the issue.

Of course, applying those standards to the court should be done across the board – meaning that while a proportionately represented court would also have one seat filled by a Black American (which it does), at least one seat filled by a Latin@ American (which it does), and one seat filled by an American of either Asian, Pacific Islander, Native American or “other” ethnic background (which it doesn’t). As all of those instances of representation are for one seat, it’s difficult to speak to the need for intersectional representation – of Latinas, Asian women, Black women, or other women of color of which Sonia Sotomayor is not only the only current example, but the only example in the United States’ entire history. Likewise, if we viewed Jewish justices as ethnically distinct from White justices (rather than as a religious group), they would most easily be included as represented by the additional seat for Asians, Pacific Islanders, Native Americans, and “others”.

Additionally significant would be the change in the sexual composition of the Supreme Court. If we treat Judaism as a religious rather than ethnic category, Ginsburg and Kagan could easily retain their positions as two of the three White women and be joined by another to make three. In effect, a representative Supreme Court would include more women, more people of color, and ideally many justices who belonged to both groups. In such a court, if demographic voting norms on the issue of affirmative action remained in place – majorities of the female justices and justices of color would favor retaining the policies. Such a court would make the 5-4 Grutter decision typical, rather than an unusual case where adequate numbers of White men were convinced of the merit of the program (in Breyer’s instance, perhaps from memories of antisemitic bias that had affected his family) to counteract the demographic misrepresentation on the court.

Instead, the current court has, if we’re probably overly generous to it and count Stephen Breyer as one of the “other” races but Elena Kagan and Ruth Ginsburg as White women, still one more White guy than it would if it were representative. And that’s likely to be the vote that will overturn Grutter.

The current US Supreme Court - justices Roberts, Scalia, Alito, Thomas, Kennedy, Ginsberg, Souter, Sotomayor, and Kagan.
(The current US Supreme Court – from right to left, justices Thomas, Sotomayor, Scalia, Souter, Roberts, Alito, Kennedy, Kagan, and Ginsburg. Originally from here.)

As we’re only in the second day of arguments, all of this is so far only speculation though. Justice Kennedy (one of the five White and male justices on the court) has shown a capacity to vote against expectations in the past, and may surprise us yet, but if he votes according to demographic lines (which seems likely at this point and would reflect his decision on Grutter), he will vote as a part of a historically and currently over-represented demographic on the court.

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