How the Questions Surrounding Sonia Sotomayor Can Be Answered Via Literary Studies

TWO MAIN ARGUMENTS HAVE framed the predictably combustible conversations surrounding Judge Sonia Sotomayor’s nomination to the Supreme Court—her ethnicity and her stance on interpreting the constitution. Both, critics and supporters claim, will affect how she adjudicates and, perhaps, how good her decisions are.

Law and literature enjoy a great deal of overlap, though rarely does one affect the public function of the other. In the case of Sotomayor's confirmation hearings, though, two of the most important recent issues in the world of literary studies actually shed light on the hot-button issues surrounding Judge Sotomayor's accomplishments and abilities.

First is the sticky notion of interpretation. Sotomayor is accused of being a fluid or liberal interpreter of the law, as opposed to someone like Antonin Scalia, who advocates for a conservative or "literal" approach to the constitution. For him, judges should look through history to the "original intent" of the founding fathers and, based on the intentions of the authors of the constitution, adjudicate appropriately. Judge Scalia has long defended "textualism" and "originalism," just as many literary scholars have championed what we might call "authorial intent." All of these terms get at the same thing--figuring out what the author of the document initially intended.


In the law, as in literature, such a project is nearly impossible.

We barely know our own motivations on a day-to-day basis, so it's neither plausable nor tenable to base one's approach to legal or literary texts on what we think the author may have intended 200+ years ago. Such approaches assume a fixed and static textuality and a fixed and static culture. The law, like literature, changes over time. So rather than try to get inside the head of a long-dead author (who does not himself change), it is better to look not at the author but at the text. Instead of asking what the author meant, we should be asking "what work does the text do?" It is this latter question that opens up people-centered documents like the constitution and novels to the beauty of human change.

What work a text does is also linked to questions of ethnicity.

Judge Sotomayor has been criticized for acting as a "Latina judge," much the way writers like Toni Morrison, Alice Walker, Sandra Cisneros and other authors have been critiqued for writing from a decidedly ethnic perspective. But, opening the literary canon was good for literary studies, just as opening the judicial canon will be good for the law.

We want our literature to reflect our diversity, so we should also want the body ruling on our laws to reflect that pluralism as well. The great mistake conservative commentators make is assuming that Anglo males do not adjudicate from a position of race or ethnicity. They most certainly do; the reality is, though, that such a position often merges seamlessly with the hegemonic values that have aggressively shaped our culture for the past three centuries.

With a new millennium, a new president, and an evolving cultural ethos, it's time for the law to take a page from its literary brother. Both our country and our legal system will be the better for it.