Justice Sonia Sotomayor's confirmation hearing took a controversial turn when commentators picked up on a reference in the New York Times to a portion of a speech she gave in 2001. In that speech, then Judge Sotomayor opined that, "I would 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." That statement, along with her participation in the per curiam decision in Ricci v. DeStefano, caused a minor storm during her confirmation. More recently, former Harvard Dean and former Solicitor General Elena Kagan came under fire during her confirmation hearing for supporting her faculty's position on the military's treatment of gay, lesbian, and bisexual lawyers and her opposition to "don't ask don't tell." This led some conservative commentators to speculate that she is a Lesbian. Both Justices Sotomayor and Kagan were attacked for bringing a perspective to the bench that supported minority groups - whether it be Latinas, women, or the Lesbian, Gay, Bisexual, and Transgendered communities. Yet, having judges who understand these perspectives would no doubt add diversity to the bench. Juxtaposing arguments in favor of a diverse bench with the treatment of these two Supreme Court nominees leads one to wonder whether those in public office are really interested in true diversity on the bench. Could it be, instead, that it is only acceptable for a judicial candidate to be "diverse" or have sympathy for minority communities if he or she does not act on them and instead complies with established white male norms? The brouhaha that both Justice Sotomayor's comment engendered and Justice Kagan's position created makes one wonder how truly committed to diversity on the bench or protecting minority groups those in public office really are. This article examines the affects of diversity on the bench, the confirmation processes for these two justices and contrasts it with the arguments in favor of a diverse bench. Ironically, these two well-qualified nominees were criticized during the confirmation process for "fear" that they would bring diverse perspectives to the bench and for their ultimate failure to conform to white heterosexist norms.
Theresa M. Beiner, White Male Heterosexist Norms in the Confirmation Process, 32 Women's Rts. L. Rep. 105 (2011).