The Nomination of Sonia Sotomayor

The nomination of Sonia Sotomayor to the Supreme Court of the United States has already triggered the usual discussions among lawyers about the quality of the past decisions of a nominee for that position (see for example, here). In addition, several of Sotomayor's expressions outside court that tend to indicate her political positions about certain topics have been put into question. For example, the fact that in a conference Sotomayor expressed that appellate judges make "public policy" (see here), something that should be obvious (see here), has caused upheaval among commentators that cling to the idea that judges only interpret (and never make) the law. Similarly, her position in a law review article about the role that the race and gender of a judge plays in judicial decisions (see here, and for a much more interesting analysis of a part of that article that has been seldom commented, see here), or the fact that in her Yale bachelor's thesis she made an expression in favor of Puerto Rico's independence (see here) have become objects of discussion in a mediatic system that depends on its capacity to sell controversies. The fact that a Puerto Rican woman has been nominated to the highest court in the U.S. has also been emphasized and, naturally, that has been the center of the discussion in the island (for an interesting analysis, in Spanish, see here).

It is not our intention to negate Sotomayor's merits or to deny the satisfaction that one might feel when the daughter of two Puerto Ricans that emigrated to the U.S. during the mid 20th century, who grew up in a poor neighborhood in the Bronx, has the possibility of been confirmed to one of the main positions in the government of that country. However, we think it is important to mention the following. The appointments of persons from minorities to high ranking governmental positions are usually presented as substantial victories, as if, from that moment on, these groups had a true representative in a position of power. But one must not forget that being nominated to the U.S. Supreme Court, or to any other position of power (as the Presidency), is to be at the service of a structure that hides and reproduces, through the appeareance of equality of the "liberal rule of law", important relations of power. Relations in which the great parts of the population, in particular those with similar backgrounds to that of Sotomayor, occupy the less privileged position. In that sense, it is not the case that subordinated groups will now have someone in the Supreme Court whose function will be to protect their interests, but that a person that belongs to a historically subordinated group has been called to form part of a juridical apparatus that, at least in part, protects those very relations of subordination.