Thursday, May 28, 2009

On Sotomayor and Her Statements Currently Criticized

On, Ed Rollins has today argued that the GOP should not put up a fight about Sotomayor, Obama's first Supreme Court pick.

On Facebook, I posted the following quick response:

"It's amazing when people criticize Sotomayor as an 'elitist' pick. What do you want, a SC justice you'd have a beer with? Sotomayor came from a humble background, which makes her success all the more impressive. Good for Rollins for seeing that this is a silly fight, whether or not Sotomayor said something that could be interpreted unflatteringly in one speech. I think I need to write a blog post about this, lol."

Here's the deal. Sotomayor said in a speech that a "wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

CNN ran a story about Rush Limbaugh's attack, calling Sotomayor a racist. In the story, if you look only at the surface of things, you might wonder why a latina woman would necessarily make better decisions than a white male. According to CNN, "White House press secretary Robert Gibbs defended Sotomayor's Berkeley comments Tuesday. 'If you look at the context of the longer speech that she makes, I think what she says is very much common sense in terms of different experiences, different people,' he said." So, let's look at the context.

Here is the speech, which the NY Times has reprinted.

Here is the paragraph that has sparked so much controversy:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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."

Two things seem important to note in reacting to the incredible attacks on Sotomayor of racism. First and most important is the fact that she does not say that a latina woman would in fact make better judgments than a white male, but rather that she would hope so. It is not clear why we should not hope that they would make equally good decisions, but the point is that we can interpret her as pronouncing an aspiration. In the past, as she points out in the speech, even justices whom history reveres, such as O.W. Holmes, have upheld discriminatory practices and rules. To say that she would hope, given her experience that a latina woman would do better than this sounds far more reasonable. In my eyes, this context effectively disarms the challenge against her of racism.

The second issue is this: when we consider juries in court room cases, we want the people who decide about our situations to be made up of our peers. The idea is that someone who is not like me in circumstance may have a harder time understanding why I made the decisions or requests that I have. It is not necessarily the case that someone cannot empathize from a different view point or experience, but it is reasonable to hope or to expect, I think, that someone with a similar background to mine would be more equipped to understand my concerns and reasoning. As such, to have greater diversity on the Supreme Court in a diverse nation is perfectly reasonable to value and is in this sense anything but racist.

Ed Rollins is absolutely right in this case, I think, that people like Gingrich and Limbaugh are making a mistake in fighting Sotomayor. Unless the GOP starts to look like it is led by less off-the-handle leaders, it is going to increase its troubles in 2010.


  1. Thanks for posting the whole quote. I think a lot of the charges of racism or identity politics are deliberately ignoring the fact that white men have a race and a gender that influences their decision-making. It is the same point that de Beauvoir made in the Second Sex, the neutral point of view is assumed to be masculine and anything else is a deviation from "normal".

  2. I realize now that I should post the quote about Holmes, where Sotomayor explains herself more fully. It is from the last page (link 5) of the NY Times Web publication of the article:

    "Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

    "However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage."

    Anyone who thinks that a judge's background makes no difference is oversimplifying, I think.