The Face of Identity Politics

This week, the country witnessed the heavily televised confirmation hearings on the nomination of Judge Sonia Sotomayor to the Supreme Court. Besides the rather galling partisan support (read: fawning infatuation) that she received from the majority Democrats on the Senate Judiciary Committee before whom she appeared, the "wise Latina" from the Second Circuit Court of Appeals, obviously intently coached by the Obama administration, deflected and sidestepped most questions concerning her controversial statements, rulings, and associations. While she in no way did this deftly—her comments and answers were often rambling and occasionally non-sequiturs—she did it well enough to avoid causing any fatal harm to her nomination.

However, her answers were disingenuous at the very least. Commenting on Sotomayor's second-day testimony, Georgetown law professor Mike Seidman, an avowed liberal, said: "I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified." In this instance, he was reacting to one of her answers that obviously contradicted a core belief and practice, that a judge cannot just simply apply the law to the facts of a case—in other words, that a judge must use his or her beliefs, background, and presuppositions to come to a conclusion on a matter. In essence, this is the "empathy" argument that has been so hotly debated since Obama announced her nomination. She went so far in her denial as to say, "I wouldn't approach the issue of judging in the way the President does."

Even early supporters like the Washington Post's Eva Rodrigues wrote: "I'm surprised and disturbed by how many times today Sonia Sotomayor has backed off of or provided less-than-convincing explanations for some of her more controversial speeches about the role of gender and ethnicity in judicial decision-making." She even claimed that she had never read—more, was unaware of—the Puerto Rican Legal Defense and Education Fund legal arguments in Ricci v. DeStefano, otherwise known as the New Haven, Connecticut, firefighters case. From 1980 to 1992, Sotomayor sat on the board of directors of this nonprofit law group, where she was a top policy maker. Since she had herself ruled on the case—and was later overturned by the Supreme Court—it is almost impossible to believe that she was unaware of what her former organization had argued about it.

This particular case has become the poster child, as it were, for the brand of political and judicial activism that Sonia Sotomayor endorses and practices: identity politics. The case involved a test given to firefighters who wished to be promoted. As it turned out, only whites and one Hispanic achieved the required grades to earn promotion, so New Haven's powers that be decided not to certify the results, claiming that the test was unfair to blacks and other minorities. The lawsuit, by the firemen who passed the test, claimed that New Haven had discriminated against them racially—what is commonly called reverse racism. Sotomayor, along with a small panel of other Second Circuit judges, upheld a lower court ruling that found for the city. Her ruling is one among many in which she decisively favors minorities regardless of the merits of the case.

In another case, Gant v. Wallingford Board of Education (1999), the parents of a black student sued, claiming that their son had been harassed due to his race and that the school had discriminated against him by demoting him from first grade to kindergarten without their consent. The parents maintained that white students in the same situation were treated differently. Due to the lack of evidence of harassment, Sotomayor was forced to agree with the dismissal of that claim, but wrote that she would have allowed the discrimination claim to go forward because the grade-demotion was "contrary to the school's established policies." This, she said in her dissent, along with the school's typical treatment of white students, "supports the inference that race discrimination played a role."

In testifying before the Senate Judiciary Committee, columnist Linda Chavez urged the Senators not to confirm Sotomayor, saying, "It is clear from her record that she has drunk deep from the well of identity politics." Later in her testimony, she said:

Judge Sotomayor's offensive words [the "wise Latina" statements] are a reflection of her much greater body of work as an ethnic activist and judge. Identity politics is at the core of who this woman is. And let me be clear here, I am not talking about the understandable pride in one's ancestry or ethnic roots, which is both common and natural in a country as diverse and pluralistic as ours. Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions, and the belief that members of one's own group are victims in a perpetual power struggle with the majority.

Chavez went on to cite many instances of Sotomayor's involvement in identity politics, from her undergraduate days to her time with the Puerto Rican Legal Defense and Education Fund and to her well-known views that the death penalty and English-language requirements are racist. She concluded her remarks with:

Although she has attempted this week to back away from her own words—and has accused her critics of taking them out of context—the record is clear: Identity politics is at the core of Judge Sotomayor's self-definition. It has guided her involvement in advocacy groups, been the topic of much of her public writing and speeches, and influenced her interpretation of law.

There is no reason to believe that her elevation to the Supreme Court will temper this inclination, and much reason to fear that it will play an important role in how she approaches the cases that will come before her if she is confirmed.

The U.S. Constitution, along with its amendments, is a document that recognizes certain rights as granted to Americans regardless of race, origin, religion, creed, gender, and social station. Although it has been used as one, it is not a club by which minorities can beat concessions out of the majority. In both its wording and its intent, every citizen is supposed to receive equal treatment under the law. And the nation's judges all the way up to the Supreme Court are to rule under this principle, taken directly from the Bible:

Hear the cases between your brethren, and judge righteously between a man and his brother or the stranger who is with him. You shall not show partiality in judgment; you shall hear the small as well as the great; you shall not be afraid in any man's presence, for the judgment is God's. (Deuteronomy 1:16-17, emphasis ours)

It is curious that this "wise Latina" cannot understand that, if she fought for impartiality, we would truly have a "color-blind" society, the purported goal of intellectual progressives for decades. Yet, it is naïve to say so, since that is not what they want at all; they want power, not equality. And Sotomayor, the new face of identity politics, will now be in a position to wield it.

Are We Really Free?

Two hundred and thirty years ago next Tuesday, thirteen American colonies defied the most powerful nation on earth and declared themselves "free and independent States." This bold move, accompanied by the Revolutionary War, had its foundations in the writings of "enlightened" philosophers who had reasoned that each individual was endowed by God with certain rights and freedoms. Among these were "life, liberty, and the pursuit of happiness," along with freedoms of religion, speech, the press, assembly, association, and many others enshrined in America's Constitution and Bill of Rights.

Since then, many other rights and freedoms have accrued to the citizens of the United States. Many of these are corollaries of rights already recognized by the founding documents, while yet too many others have been engineered out of the ether. For instance, perhaps the best-known, totally unfounded right is that of abortion. This derives, says its proponents, from the right to choose and the right to privacy, both of which are missing from the Constitution. The Founders certainly did not, and if alive today, would not want the nation's basic law to allow for the selective murder of innocents. They would be horrified to see how their ethical and noble masterpiece of human law has been perverted.

Some of our freedoms have been so curtailed or twisted as to be unrecognizable. The evolution of the freedom of religion is perhaps the most egregious example, which began with the elevation of "separation of church and state" from a phrase lifted from a letter written by Thomas Jefferson to constitutional dogma. The Constitution guarantees only that the government would not establish a state religion and that Americans are free to worship as they choose. It says nothing at all about prayer in schools or governmental meetings, Bible passages or references to God on government buildings or grounds, or any interaction between religious organizations and government. Truly, as has often been said, we no longer have freedom of religion but freedom from religion. It has been turned on its head.

The Second Amendment, guaranteeing the right to bear arms, has been similarly violated. It may no longer be politically correct to say so, but in the Founders' minds, this right had three applications: Arms were necessary for 1) hunting animals for food, 2) protecting oneself from predators and hostiles, and 3) defending oneself against the tyranny of the government. Today, there are myriads of laws defining this basic right down to a mere whimper of its former bang. Studies have shown time and again that an armed citizenry makes for a safer society because both criminals and governments have to respect the potential for retaliation. While the sixth commandment certainly forbids aggressive self-defense (Exodus 20:13; 21:12-14; 22:2-3; etc.), in a carnal society the freedom to bear arms actually provides a necessary deterrent to violence.

The Founders would be aghast at the Kelo v. City of New London ruling last year, which essentially allows governments to condemn existing properties in favor of more tax-lucrative enterprises. The right to property was among their highest principles; to them it almost by itself defined a free man. That the Supreme Court of the land would use their writings to justify the outright theft of a citizen's land would be unconscionable to them. On top of this are all the frequently nitpicky statutes and regulations that limit—and sometimes even prohibit—how a person uses his land. In essence, the once sacred right to property has been minimized to a kind of feudal system of ownership, in which the government (the overlord) has the last say in how property is utilized and disposed, plus it demands and takes an exorbitant share of its value in taxes.

Finally, though this does not exhaust the list, we no longer have equality under the law. There are too many examples to name, but maybe the most obvious is the "hate crime." If a man assaults another man, he gets x amount of time in jail or a fine of x dollars. However, if the other man he strikes is a homosexual—that is, a protected minority—he will receive x+ in penalties from the judge. Sometimes, even if the minority status of the aggrieved person is not pertinent to the crime—that is, there is no malice involved—the perpetrator will still receive a heavier sentence. In reality, this means that an injured minority has a higher value than an injured member of the majority. This miscarriage of justice occurred in the landmark case of the 1998 beating death of gay University of Wyoming freshman Matthew Shepard. He was murdered, not because he was a homosexual, but because he had failed to pay his drug supplier! While this is an extreme case, similar inequalities have removed the law's impartiality and restricted the average citizen's supposedly inalienable rights.

These five examples are just the tip of the gargantuan iceberg of lost freedoms and rights—we did not even mention those stripped by the Patriot Act. How free are we, then, if so much has been taken away? What are the chances that these rights will be returned? Although it has happened from time to time, government does not have a good record of willingly returning powers it has arrogated to itself. This is why Jefferson recommended "a little revolution now and then" to restore the proper balance.

True Christians, whose "citizenship is in heaven" (Philippians 3:20), have an advantage over the unconverted citizen of an earthly nation: We can feel free—and actually be free—despite the encroaching bondage to national government. Jesus discusses this in depth in John 8, saying that true freedom resides paradoxically in submission to Him and to His truth (see verses 31-32; see Romans 6:15-23). In fact, one is never truly free until he comes to this point, no matter what his political circumstances!

Every individual is enslaved to his own nature and so to the deceptive whims of the god of this world, who is the father of that nature (II Corinthians 4:4; John 8:37-44). Thus, to be free, one must overcome both his own nature and the influence of Satan, which is mimicked in the cultures of this world, and this is only possible through belief in Jesus Christ and, as He put it, "abid[ing] in His word" (John 8:31). So a Christian is called to liberty (Galatians 5:13), one of loving self-control and outgoing concern.

This is the only true way to be free.