2001 Sotomayor Speech Provides Additional Insight Into Judicial Philosophy (Exclusive)
Morgen on May 5, 2009 at 12:47 pm
Earlier this week an initial opposition memo was released through various media channels (e.g. Michelle Malkin) with some limited background information on the candidates considered most likely to be nominated by Obama for the open seat on the Supreme Court. Here is an excerpt of what the memo had to say regarding Judge Sonia Sotomayor, who is generally regarded as the front-runner:
Judge Sotomayor’s personal views may cloud her jurisprudence. As Judge Sotomayor explained in a 2002 speech at Berkeley, she believes it is appropriate for a judge to consider their “experiences as women and people of color” in their decision making, which she believes should “affect our decisions.”
I did some additional digging into this and managed to find the full text of Sotomayor’s speech. Unfortunately I cannot provide a link to it as it is not available on the public internet. The speech was actually given in October of 2001 (not 2002). Sotomayor was the keynote speaker at a conference at Berkeley commemorating the 40th anniversary of the first judicial appointment of a Latino to a federal court. The conference was sponsored by the Berkeley La Raza Law Journal, the publication in which Sotomayor’s speech is published.
Since this speech is published in a periodical, I am constrained by fair use guidelines in providing only a limited number of direct quotations. However, a significant portion of Sotomayor’s speech was autobiographical in nature, and in my assessment did not include any noteworthy details beyond which is already known about her background. There is also a large block where she provides details and statistics on the state of Hispanic appointments to the judicial system as of 2001. Here are the most relevant quotes with regards to the statements released earlier this week:
America has a deeply confused image of itself that is in perpetual tension. We are nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud…Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with differences.
…
While recognizing the potential effect of individual experiences on perception, Judge [Miriam] Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.
…
I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that – it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.
…
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 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 experience would more often than not reach a better conclusion than a white male who hasn’t lived that life. (emphasis added)
…
I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies, and prejudices are appropriate.
There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We…must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.
All quotations: Berkeley La Raza Law Journal. 87 (2002), “A Latina Judge’s Voice”, S. Sotomayor
I wish I could share more, but I believe what I have quoted above provides the proper context for the initial assessment which was published in opposition to her candidacy. To be fair, I do want to note that the statement she made regarding a Latina woman reaching a better conclusion than a white male is outrageous enough that it may have in fact been a joke. Although since it’s published “as-is” in a law journal I’m not sure she is entitled to the benefit of the doubt on this. The text certainly does not indicate that it was said in jest.
I have only a lay-person’s understanding of law and judicial history, but I suspect the judicial philosophy implied by these statements is probably pretty typical amongst liberal judges. Personally, I wish it seemed that she was actually really trying to meet the judicial ideal of impartiality, and her comments about making a difference are a concern as this does not seem to be an appropriate focus for a member of the judiciary. I look forward to hopefully seeing some additional dissection and analysis of these statements by others in the conservative legal community.
Just one other interesting side note. Judge Sotomayor referenced Harvard Professor Martha Minow on a couple of occasions within her speech as a former classmate. Minow was actually one of Barack Obama’s professors at Harvard Law. In fact, Minow recommended him for his first legal job with Sidley Austin where her father was a Managing Partner. And of course Sidley Austin is where Obama met Michelle. Small world!
John adds: I’ve read the entire document and here’s my take. I’ll boil it down to two points:
- Judge Sotomayor chooses her words carefully (which is good) but ultimately seems not to have penetrated very deeply into the issue of race and its influence (which is not so good). On the one hand, she says that we live with a tension between being proud of our heritage (as whatever) while at the same time striving to live in a color-blind society. So far so good. It’s at least a thoughtful approach. But from there on, she never really manages to make any headway. She says that maybe race shouldn’t matter, then says that of course it will. She says we need more minorities on the courts, but then wonders what effect that will actually have, if any. She literally suggests that we’ll find out when we appoint more minorities, as if racial bean counting needs no further justification. In the end, she never really says much of anything, certainly nothing visionary, challenging or particularly insightful.
- There is a thread running through the document which is more or less summed up in her statement about “relative morality.” She clearly feels that a judge’s background affects what a judge “sees” (though as noted above even this doesn’t really go anywhere). She says at another point (quoted above) that there is no universal definition of wisdom. I suppose none of this will matter to liberals who largely agree with her on these points, but personally I felt this was exactly the sort of thinking I would not want on the Supreme Court (or anywhere else for that matter). It reminds me of the claims by members of the MSM who, when challenged about their bias, reply that impartiality is their goal though they may never achieve it. Those of us on the right have found that they rarely achieve it and sometimes don’t even seem to be trying very hard. So, for what it’s worth, Judge Sotomayor is firmly in that camp. Whether she’s able to transcend her own biases will have to be judged on grounds other than this speech.
UPDATED (5/26):
So Sotomayor is Obama’s pick after all. As Ed Morrissey says, sometimes the favorite does win the race. I think in this case, the Administration determined that the political advantage from naming the first Hispanic to the Court outweighed the firestorm of controversy they knew would be stirred up by this speech (among other things).
By the way, did the NY Times crib the info on this speech from us? I’m saying “yes” since we were the “conservative bloggers” they linked to in the article (a link to our “Court is Where Policy is Made” video). Our post on Sotomayor’s Berkeley speech was put up more than week before the NYT article. Hey NYT, do your own damn research.
Category: Politics |
When you get a chance, if you haven’t done so, you ought to read Justice Thomas’ dissent in Virginia v. Black and compare it to the position taken by the other justices in that case.
( http://www.law.cornell.edu/supct/html/01-1107.ZD.html )
May 5, 2009 @ 8:28 pm[...] Sotomayor: Race and gender do matter to judging [...]
May 5, 2009 @ 9:26 pm[...] Serum: 2001 Sotomayor Speech Provides Additional Insights Into Judicial Philosophy Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach [...]
May 5, 2009 @ 9:46 pmNothing wrong with her admitting her own prejudices. The question is whether she will recuse herself in cases where she can’t honestly confront the issue at bar because of that prejudice.
May 5, 2009 @ 10:04 pmAww, the white men just can’t catch a break these days. After all, of all the SCOTUS justices in history, all but two of them have been white, and virtually all of them men…
poor whites and men…awwww.
May 5, 2009 @ 10:29 pm[...] All Global News on One Page placed an observative post today on 2001 Sotomayor Speech Provides Additional Insights Into Judicial…Here’s a quick excerpt…speaker at a conference at Berkeley commemorating the 40th anniversary of the first judicial appointment of a Latino to a federal court. [...]
May 6, 2009 @ 12:20 amIt is true that there have only been two women justices, and that their record is less than impressive. That is not say there should not be a third Howver that woman should an judicial intellect closer to Anton Scalia than Ruth Bader Ginsberg.
May 6, 2009 @ 3:54 amExpect to see Sotomayor lauded as a genius. Her rhetoric is very much like Obama’s – long on musings and reconsiderations and profound ponderings – short on history, law, and logic – and motivated overall by a worldview that is undeterred by the Constitution and determined to achieve the liberal utopia.
May 6, 2009 @ 4:15 amSamir,
May 6, 2009 @ 5:17 amYour attitiude is EXACTLY what is wrong today. It is not about poor white man, black man, brown man. It is about can you DO THE JOB as the JOB requires. There are rules and guidelines to being a judge. You do not get to change them at your whim no matter your race, color, or gender. The sooner you and others of your ilk grow up and stop playing the “Whoa is me, wahhh, wahhh” card you might be taken a little more seriously.
The usual racial cant. But on a positive note, it will be fun watching her try to explain these quotes to the Senate. Also, if she is nomimated, it will be great fun to observe Scalia taking this affirmative action light-weight apart.
May 6, 2009 @ 6:10 amAnd your point Samir? Is it not these whit men who have turned off what she claims she cannot so others are judged fairly and laws are applied equally?
May 6, 2009 @ 6:29 amWell, so much for the whole “Justice is Blind” thing! It just shows how far our country has been diminished that someone like Sotomayor can even be considered for this post.
Jefferson rolls over…again.
May 6, 2009 @ 8:23 amAww, white guys can’t catch a break.
It’s so obvious that minorities and women — doubly if they are both a woman and a minority — are not qualified to be SCOTUS. At least that is the feeling I am getting from the right-wing.
May 6, 2009 @ 10:40 amI’d be happy to have all women on the court…just as soon as we learn to clone Margaret Thatcher.
May 6, 2009 @ 10:57 amTo Sotomayor, I offer this piece of ethnic wisdom, which (according to her) is self-validating:
sea silencioso, los hombres están hablando
(be quiet, the men are speaking).
For is it not a hallmark of my culture to react thus to an opinionated woman? Is Sotomayor to parrot the “whites” when she argues for a different, more “modern” (which is code for…WHITE!!!! gasp!) standard in gender roles and interactions?
OR – will she extoll her ethnicity while unilaterally making the definition thereof whatever advances her personal interests. [Race! Gender! the wisdom of my brown skin.....but socially I get to be to the hard left of even the Unitarians....while simultaneously invoking tradition.][Did I mention my brown skin?]
Para La Gente/Para La Raza? Oh please.
May 6, 2009 @ 10:25 pmTrackback: Judge Sotomayor Just Shot up the Badass Meter, The Debate Link.
May 6, 2009 @ 10:48 pmI’m always surprised at how many people think gender or melanin should impact one’s ability to perform. I’ve had people accuse me of not liking Obama because of the color of his skin — ridiculous — or of being anti-woman — patently ludicrous given the fact that I am one. I don’t give a flying leap what color or gender the next justice is. All I care about is competence, logic, and clarity-of-thought. Which restroom he or she uses, or how much sunscreen he or she needs on a bright day is inconsequential.
May 7, 2009 @ 1:46 amSamir -
Please, cite for me the vast outrage among the “right wing” about Clarence Thomas’s appointment to the Supreme Court. Or if your memory doesn’t stretch back that far, cite the opposition to Harriet Miers’ appointment that focused on her being a woman and said nothing about her opinions. (There probably were a few — there’s always going to be nutcases on both sides, right and left; but the vast majority of Republican opposition to Miers focused on her opinions, not her gender).
While you’re doing that research, see if you can find the people who claimed that Thomas “wasn’t really black” because of his opinions. And stop and think about the inherent racism in that statement. Because someone has a certain skin tone, they should hold certain opinions? Says who?
May 7, 2009 @ 8:37 amSpeaking as a proud liberal White male Democrat, I want to whole-heartedly endorse the views of fellow proud liberal White male Democrat Scott Lemieux on Clarence Thomas — namely, that he is one of the best arguments for affirmative action ever seen in a high governmental position. Indeed, he could be the affirmative action poster boy:
* His qualifications certainly weren’t as impressive as many other potential candidates, and indeed, there is almost no chance he would have been nominated were he White.
* But he has proven himself to be one of the more influential and intellectual impressive judges on the Supreme Court — certainly far more so than his colleague Justice Scalia.
* And furthermore (this is my point, not Lemieux’s), Justice Thomas has served an important role in providing a Black perspective on many issues — at times quite consciously so. See, for example, his dissent in City of Chicago v. Morales, 527 U.S. 41 (1999) and in Grutter v. Bollinger, 539 U.S. 306 (2003).
To be sure, he hardly represents the majority view in the Black community, and I do not want his perspective to drown out or be seen as adequate replacement for the stances held by the majority of that community. Nevertheless, our legal jurisprudence would not be as rich if we did not have such an able voice for Black Conservatism on the court. Regardless of whether a White conservative justice could give us Thomas’ insights, the fact is that none did — his perspective is in many ways unique for persons in high political office (where Blacks are mostly liberal, and conservatives are mostly White). To my mind, that counts towards “merit” when selecting judges.
See also my posts Thomas, Morales, Race, and Crime; Excerpts on Clarence Thomas; and Taking Thomas Seriously.
May 7, 2009 @ 7:21 pm[...] Morgen placed an interesting blog post on 2001 Sotomayor Speech Provides Additional Insight Into Judicial …Here’s a brief overviewFirst, 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 experience would more often than not reach a better conclusion than … [...]
May 8, 2009 @ 1:48 pm[...] I can’t vouch for the authenticity of this, but I’m throwing it out there if anyone is interested. __________________ To view links or images in signatures your post count must be 10 or greater. You currently have 0 posts. To view links or images in signatures your post count must be 10 or greater. You currently have 0 posts. "Even as it stands, the Home Guard could only exist in a country where men feel themselves free. The totalitarian states can do great things, but there is one thing they cannot do: they cannot give the factory-worker a rifle and tell him to take it home and keep it in his bedroom. That rifle hanging on the wall of the working-class flat or labourer’s cottage is the symbol of democracy. It is our job to see that it stays there." -George Orwell "Remember that a government big enough to give you everything you want is also big enough to take away everything you have." -Barry Goldwater "Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence." -Sir Robert Peel [...]
May 26, 2009 @ 7:42 amAs a handicapped, transexual, Eskimo, born in Latin America of mixed Eskimo and black parents, and a proud member of Islam, I wonder if SAMIR can ever hope to match the life experiences or wisdom of my tribe?
Awwwww, poor Samir, just doesn’t have the right beans for victimhood.
La Raza lives! Just like in the Third World.
May 26, 2009 @ 7:45 am[...] racist and/or sexist. Fortunately, she has many very obvious soundbites to back up these charges – take this quote: I would hope that a wise Latina woman with the richness of her experience would more often than not [...]
May 26, 2009 @ 8:28 amThis is fairly stock for anyone who has studied ethics at a university in this century. Most modern ethical inquiries deny the Ancient Greek, Medieval Christian, and Enlightenment German ideaa of a universality of ethical action (or even the idea of an “ethical action”). The relativism that replaced it is simply a sofisticated way of making the statement, “My judgement is the only valid one”. Law then becomes simply a power play of enforcing ones judgement on others. She made the typical freshmen mistake of substituting the word “morality” for “ethics”, but it is tantamount to the same thing.
May 26, 2009 @ 8:54 am[...] Serum’s May 5th post has some quotes from a speech she gave at UC Berkeley, at a conference sponsored by the Berkeley La [...]
May 26, 2009 @ 4:27 pm[...] means Obama just chose a racist to fill the supreme court vacancy. here is the original quote: 2001 Sotomayor Speech Provides Additional Insight Into Judicial Philosophy (Exclusive) | Verum Serum "Whether born from experience or inherent physiological or cultural differences, a [...]
May 26, 2009 @ 7:20 pmThe White House spokesman has defended the controversial “Latina women vs. white men” quote as taken out of context by Rush Limbaugh, who lambasted Sotomayor as a “reverse racist.” After reading this thorough and unprejudiced analysis, it is clear that the quote was not out of context at all but is in fact a fundamental theme in Sotomayor’s thinking process. Apparently, the same can be said for thinking at the White House.
May 27, 2009 @ 6:55 amI don’t find anything “outrageous” in these quotes. Justice O’Connors remark was idealistic. Sotomayor’s remark more accurately reflects the reality that the opinions of judges are influenced by their makeup and experience as well as their legal training. Take Chief Justice Roberts, for example. Despite his coy claims of objectivity and respect for the law as the determinant of the result, there is no question that his opinions always reflect those of his privileged class, and act to protect the members of that class.
May 27, 2009 @ 10:10 amGary,
It’s one thing to say that judges act in accordance with their experience. It’s another to say that the experience of being a Latina woman is superior to that of being a white male. That’s what Sotomayor said and that is outrageous.
May 27, 2009 @ 10:23 amBetter to aspire to impartiality with the wisdom to recognize that it is an unattainable ideal, than the pretense of having attained it or the foolish belief that it can, in fact, be attained.
John says, “Those of us on the right have found that [members of the MSM] rarely achieve [impartiality] and sometimes don’t even seem to be trying very hard.”
I agree with the second part – though I think it disingenuous in the extreme to restrict the statement to the MSM. Indeed, it seems to be a default state of human nature in general not to try very hard to attain ideals.
However, the first part (they “rarely achieve” impartiality) reveals a rather poorly developed and unsophisticated understanding of the world. There can be no absolute judicial impartiality, if only because the language in which our laws are codified is inherently clouded by shades of meaning, and therefore open to interpretation. Even if the law were written with absolute impartiality (which I would also dispute), language, like culture, is not static, so that the law, like history itself, requires periodic re-interpretation to remain relevant to the present day. If this were not true, there would be no need for the judiciary at all; a Rosetta stone would suffice.
The right loves its absolutes, and tends to believe in them implicitly. However, as Voltaire said, “Doubt is not a pleasant condition, but certainty is absurd.” The political right in the US, at this moment in history, is nothing if not certain, and absurd.
May 27, 2009 @ 11:23 amNice. But only true of SOME conservatives (and most Republicans apparently)
Reading through this thread, I agree with John that the “Latina woman is superior” quote is outrageous. Maybe it was said in jest, maybe it was taken out of context, but outrageous on its face. I hope she is vetted HARD on this statement.
Aside from this one peccadillo however, I don’t think that there is much about this thread that is more than smoke w/o heat or light.
This all boils down to one basic issue:
I’m a bigot.
Of course I can only speak for myself, but I don’t think I’m special, so based on that assumption, you are all bigots too, and so are the other 9 judges, and so are Sotomayor and Obama and the senate etc. etc.
I know, I know, this is hardly news breaking. But given that we ARE all bigots, it also follows that in a lifetime of public speaking Sotomayor is going to say one or two ridiculous things on the record. So I don’t think she should be disqualified out of hand for that. She does seem to have pretty good insight at least (which is more than many can say).
Some of the comments on this thread remind me of a common liberal saying – “Jesus was a liberal, and if he came back today, the conservatives would crucify him all over again.”
I see this in many quotes on this thread that seem to show a tendency to assume that the ONLY correct moral framework and the ONLY correct jurisprudence and the ONLY correct political worldview is (Christian) conservatism. This is different than bigotry – this is ideological tunnel vision.
Like it or not, we live in a pluralistic society. I’m glad to see more cultural and ideological diversity on the bench. But then that’s one consequence of election turn-over isn’t it?
I don’t know if She is competent, but I do know that I am NOT competent to judge her abilities. I have no choice but to trust the process. Perhaps the attention should be focused less on the character of the appointee, and more on the integrity of the vetting process? I am cynical, because I have seen too much payola in DC in my time, but it seems like things might be getting better.
We shall see. So far I have no reason to doubt her qualifications, but I AM sure that there are people on this blog who would criticize Jesus himself if Obama appointed him to the bench. Such is the nature of tunnel vision.
Anyway I just want to put a plug in for insight. Sometimes it’s fun to be a gadfly.
May 27, 2009 @ 2:40 pmJohn (29), she didn’t say that; you have paraphrased her remark to put your spin on it. This site has helpfully published the exact quote with enough context to understand it, and on rereading it, I still don’t find anything outrageous in her remarks, as quoted (not paraphrased) here.
May 28, 2009 @ 8:36 amPaul (31), you, too, have paraphrased Sotomayor’s remark, and you have put quotation marks around it. I have reviewed the quotation given above and I can’t find it. If have to make up statements she didn’t say in order to find an outrageous one, I would think her actual words were not all that outrageous.
May 28, 2009 @ 8:41 amPaul (31), Oh, I see you were quoting John. But you edited down his words to put even more spin on it, giving the words new meaning in the edited context. When critics have to resort to rhetorical tricks like this, it’s pretty clear they don’t have a leg to stand on.
May 28, 2009 @ 8:47 amYou’re absolutely right. That would explain why no one in the world is talking about this. Nothing to see here at all.
May 28, 2009 @ 9:04 amGary,
Okay, here is the quote everyone is talking about:
Here’s what I said about it:
Just to be clear, the word “superior” in my statement is keying off the word “better” in her statement. So, no, I don’t think I paraphrased her inappropriately at all.
But go ahead, explain to all of us how the superlative “better” does not mean “superior” in this case.
After that you can help us understand what the meaning of ‘is’ is.
May 28, 2009 @ 9:41 amThe left loves its absolutes as well, you’re just so immersed in them you don’t notice anymore.
Talk about lacking doubt, many, many people on the left are stunned to discover anyone could disagree with them. But again, you’d probably need a hand mirror to get that.
May 28, 2009 @ 9:45 amJohn:
Have you read the full text? It’s a good lecture overall, and I think placing the statement in its context is helpful.
She was not saying that a Latina’s experience is better than a white male, full stop. She placed her comments squarely in the context of some of the major decisions the Supreme Court has made in the areas of racial and sexual discrimination.
And those are areas where race *does* matter, whether you like it or not. For example, what if the Court’s makeup in Dredd Scott had been nine black men.
Would the decision have been the same?
To say that the Supreme Court’s role in either propogating or fighting racism, from Dredd Scott through Plessy v. Ferguson, on to Brown v. Board of Education, has been shaped by the racial and gender composition of the Supreme Court, and that the Supreme Court would have probably *benefited* from greater diversity, is neither profound, nor controversial.
Period.
May 28, 2009 @ 10:02 amM.G. you are the one attempting to distort the “context” of this statement. Have WE read the speech? We were the ones who originally discovered this (look at the dateline of this post). I have a PDF copy I purchased more than a week before the NY Times made it available, and John and I have read it multiple times.
Sotomayor made this statement specifically in response to a quote credited to Justice O’Connor that a “wise old man and a wise old woman will reach the same conclusion in deciding cases”. Sotomayor explicitly disagreed with this and her controversial statement was a direct explanation for why she disagreed.
You may not find this objectionable or even particularly controversial, but don’t come on here and try to claim that her statement had anything to do with the past cases you cite. While Sotomayor did cite Brown vs. Board of Education in the preceding paragraph, she did so only to downplay the fact that this case was decided by a Court consisting exclusively of white males.
In point of fact, the Brown decision completely refutes the idea that racial/ethnic diversity is necessary in order for the Court to reach “just” decisions in cases regarding minority rights.
And for a judge to so explicitly admit their own racial and gender biases in adjudicating cases, is not only outrageous, but is also completely unprecedented with any Supreme Court nominee. Can you honestly say that if Roberts or Alito had said anything remotely like this in reverse, that the Left would not have stirred up a firestorm over it? Save whatever shred of credibility you have left and don’t answer that question.
May 28, 2009 @ 10:21 pmMorgen:
So that’s a yes, you have read the entire lecture. Terrific.
To rely on an old cliche, one can disagree without being disagreeable. I feel sorry that you are so angry about this issue.
The way I see it, the lecture is an extended argument about the value of minority perspectives in judging. While she readily admits that judging is first and foremost an attempt to be as neutral and fair as possible, she argues that such a view is impossible. To paraphrase Thomas Nagel, judges would be foolhardy to think that they can judge out of the “view from nowhere.”
And that perspective is especially value in anti-discrimination cases. You’re right that Brown refutes the idea that nine white men can’t reach the right conclusion. But that doesn’t really address what she was saying.
Rather, what she was essentially saying was that looking at the judiciary as a whole, men and women of color are needed, and they are needed because they bring a specific perspective, namely the experience of discrimination, to bear on an area where the Supreme Court took a 150 years to make any real progress. Indeed, as Judge Sotomayor states, “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.”
Those justices, although remarkably wise, failed to rule correctly in discrimination cases, and that would have been different had they been minorities or women.
If Roberts and Alito had ever stated that something about being white lends a useful perspective to handling administrative law cases, I agree, a firestorm would erupt.
But then, I don’t think the two instances make for a good analogy. It’s not true that whites are better at administrative law. But as a factual matter, I agree with Judge Sotomayor that minorities bring to bear a unique and valuable perspective in the fight for racial and gender equality.
Let me repeat my question, if you’ll indulge me: Had Dredd Scott been decided by nine black men, would the outcome have been the same? Why not? What does that say about the perspective of black men in cases involving racial discrimination.
My best to you, Morgen. I hope I have some shred of credibility.
May 29, 2009 @ 5:55 amM.G., I apologize for showing a little testiness last night, but please trust me when I say that it was far from anger. I disagreed with the implication you had made about the context of her statement, just as I disagree with the thrust of your most recent response.
The role of the judiciary as defined by our Constitution and 250+ years of legal tradition is not to “fight for racial and gender equality” or any other cause. Equality under the law is and always has been a Constitutional right, and the fact that slavery and discrimination existed as long as it did was a travesty of justice.
But the idea that our judges at any level are or should be engaged in a “fight” based on any agenda, however just one may think it to be, is the very definition of judicial activism. This is exactly why liberals rail against the idea of judicial activism when considering conservative judges. Would pro-choice Americans be comfortable with a judge who believes it is their duty to “take up the fight” for the right to life of the unborn?
We have a representative government and the power to create or change law is a power granted exclusively to the Congress, who represent all of the diverse interests, ethnicities, religions, etc. of the people who elect them. The role of the judiciary is to interpret and uphold the law, including the rights specifically enumerated in the Bill of Rights.
There is no rule of law in a society where justice is not truly blind. This may be an ideal that can’t ever be fully reached in all cases by a judge individually, but it is one that should always be strived for. A judge swears to do so upon taking office.
For a judge to essentially throw in the towel and say that this goal is not “possible in all or even most cases”, and further that by attempting to uphold this ideal they would be doing a “disservice both to law and society”, I think this goes well beyond an acknowledgement that true impartiality is not always impossible. In my opinion, it’s indicative of a judge who is looking for an excuse to ignore the ideal of impartiality, and to make decisions based on personal preferences.
May 29, 2009 @ 7:06 amMorgen:
The fundamental disagreement I have with you is that as I read Judge Sotomayor’s lecture, it strikes me that it is primarily *descriptive* and not *prescriptive.* It’s saying, as a matter of fact, that one’s background affects one’s judging.
It’s a matter of fact that what strikes a 21st century Latina woman as equal justice under the law, is going to be different than what strikes a 19th century white man, or a 1950s white woman, or a 21st century black man as equal justice under the law.
As a result, (and this is the only prescriptive portion of her lecture) diversity in the judiciary is a good and valuable thing.
What I don’t read, is that judges are permitted to rule on fancy or whim, simply because our backgrounds influence us. I’m pretty certain that Judge Sotomayor still believes in the rule of law, and that she believes strongly that impartiality is a guiding principle of effective judging.
I think that you have to read *into* her lecture to get that judges are permitted to rule on the basis of “personal preferences.”
The crux of the matter is this: Was she saying that a Latina woman would do better in deciding discrimination cases than say Justices Oliver Wendell Holmes and Benjamin Cardozo? That because of their background, they wouldn’t have been so inclined to write things like “three generations of imbeciles are enough?”
Or was she saying that Latina women are better than white men, because white men are horrible?
Perhaps I’m too charitable a reader, but I’m inclined to think it’s the former and not the latter.
May 29, 2009 @ 8:34 amGary and MG, I think you are right. I see that I judged that quote out of context (I suppose I really need to go listen to/read the whole speech).
The idea that we are all dancing around here is the idea of privilege. Specifically white male privilege.
This is a feminist concept that probably doesn’t hold much truck on this blog, but I think it is a real social phenomenon, and I think it is the core issue in this discussion.
I don’t need to be afraid I’ll be raped if I go out at night. I don’t (generally) need to worry about whether or not I will be passed up for a job or a promotion due to the color of my skin.
I can hang out with the richer members of my society and not feel like an outsider, and because of this I have more opportunities for jobs and promotions. People assume that I am qualified to be in a role of leadership simply because I am a white male. Heck, my boss even defers to me sometimes in ways she doesn’t defer to other (female) staff members at my work.
This is all white male privilege. A Latina woman lives in a very different world than I do. Her whole culture is completely different than mine. Her friends and neighbors probably understand a different world than my friends and neighbors do. And on and on.
So let’s take another look at this quote, and with this in mind let’s change the emphasis:
“I would hope 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.”
One who hasn’t lived that life is one of privilege. A person of privilege really does not have the point of reference that a minority does. She is speaking about the insight into discrimination that a white male cannot have that a Latino woman does.
Yes, objectively, her understanding of this issue is “better” than mine ever could be.
May 29, 2009 @ 10:01 amBut is it a matter of fact that what strikes a 21st century Latina woman as equal justice under the law is going to be different than what strikes a 21st century white man as equal justice under the law? This is really the only relevant question here as far as I’m concerned. It’s all well and good to point out the historical injustices legitimized by the Courts of the time. But we are talking a candidate for the Supreme Court now, and beliefs she expressed in the current era.
My concern over her making decisions based on personal preference is based simply on this. When she said that she wonders “whether by ignoring our differences as women or men of color we do a disservice both to the law and society”, this is not a descriptive statement of fact. This is a statement of opinion on her part that strongly suggests she believes this to be the case, that she would in fact be doing a disservice to society by doing so. Especially in light of her subsequent statements that we discussed earlier.
So while I appreciate the reasoned basis and courteousness of your arguments, I flatly disagree.
May 29, 2009 @ 11:00 am“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases.”
There, Judge Sotomayor agreed with the aspiration of judging from “nowhere,” and stated she attempts to work to that place.
It seems clear to me that she believes that there is a *tension* between the law as a science (reasoned impartiality) and law as an art (judging between two parties, where particular experiences will affect one’s judgment).
Every serious lawyer agrees there is a tension. Granted, I’m sure that Judge Sotomayor would differ from the writers on this blog over how to manage the tension. But that is to be *expected* is it not?
The question is, do you really believe that law is all science? That anyone can turn off their experiences, background, life choices, and become this perfectly reasoned automaton? That some type of diversity is to be appreciated in the judiciary? That if the entire judiciary were composed of white men, well, the law would be the law?
You may indeed believe all those things. But, importantly, disagreeing with you on fairly nuanced questions does *not* disqualify someone from sitting on the Supreme Court.
And, more importantly, I don’t think there is any basis for accusing Judge Sotomayor of being a bigot or a racist.
May 29, 2009 @ 11:36 amI have not even come close to suggesting that Judge Sotomayor is a racist, although I think it’s reasonable to suggest that the infamous statement in question expresses a racist sentiment. Whether reviewed on its own or within the full context of the article.
This statement you’ve highlighted immediately precedes her statement that she wonders “whether by ignoring our differences as women or men of color we do a disservice both to the law and society”. So perhaps this is the dividing line in our disagreement. My take-away here is that she does not seem to be attempting very seriously at all to achieve impartiality. Quite the contrary – she seems to be disclaiming any reason to even try. After all, to do so would be a disservice to society.
Btw, how do you “attempt to work toward” anything? You’re either working toward something or you’re not. Doesn’t this statement alone suggest that she doesn’t really consider this a serious goal?
May 29, 2009 @ 2:56 pmI’ve referenced your post from Fisking the White House Blog on Sotomayor
May 29, 2009 @ 7:31 pmMorgen:
This would be a perfect example of the descriptive/prescriptive split.
I believe the “disservice” is a reference to the perils of an all white judiciary. It is not a license to judging as to personal whim.
Why? Because if one’s own preferences and prejudices were so obvious (ignore your prejudices, sure, but it’s a disservice!) then her argument collapses. The view from nowhere is no longer a lofty but ultimately *unreachable* goal. Instead, it’s an easily reached but *misguided* role.
I think this is the key paragraph:
“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 WHAT THE DIFFERENCE WILL BE IN MY JUDGING. But I accept there will be some based on my gender and my Latina heritage.” (emphasis added)
If she doesn’t know the differences, how could she ignore them? And how would that be a disservice to society?
I’m sorry, but I simply see nowhere the thesis that, “impartiality is a great idea, but it’s not practical, so I’ll judge from prejudice and whim.”
Rather, I would contend that the overarching thesis of the lecture is “men and women are different. Blacks, whites, and Latinos are different. While a noble aspiration of the law is impartiality, we would be foolish to think that background experiences *don’t* affect people’s understanding of the law. Thus, the judiciary should better reflect America’s astonishing diversity.”
Morgen, you are free to continue believing the former is what she was saying. But a charitable reading fully supports the latter interpretation.
I like this blog a lot. But I find the whole “Republicans are the good guys saving the world, and the Democrats are the stupid bad guys destroying the world” routine tiresome and anti-intellectual.
May 30, 2009 @ 6:02 amThat all sounds good, but it doesn’t account for the line in question:
That goes beyond a suggestion that diversity is a good idea to the statement that minorities are better judges than white men. It’s objectionable. If we reversed it, there’d be no question it was racist.
BTW, as of yesterday, Sotomayor has now admitted she misspoke. So apparently she doesn’t agree with your analysis that there was nothing to see here.
Why are you defending the indefensible? Even the NY Times agrees it’s a problem.
May 30, 2009 @ 10:04 amI think the line is better understood in the context of the follow-up sentences:
“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.
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.”
It seems to me that she is talking specifically about anti-discrimination cases. If that’s the case, I think she has a valid point.
If she was talking about Latina judges being better judges than white men, then I agree, that’s wrong and indefensible.
But then, her point in the lecture was *making room* for people of color in the judiciary, it was *entirely replacing* white men with people of color in the judiciary.
Do we really think that her point here is that white men can’t judge (as opposed to jump?) Or maybe, just maybe, that people of color have a unique and valuable voice, especially in issues dealing with discrimination?
Is it really the former point?
Really?
And the whole misspoke issue is a non-sequitur. People can use a poor choice of words to communicate a valid point.
The question is the significance of her inelegant point.
I also happen to think that Trent Lott probably isn’t a rabid segregationist.
But surely everyone here does? Right? Isn’t that the uncharitable reading we all deserve?
May 30, 2009 @ 11:06 amMG,
I think the Trent Lott case is an apt parallel. Lott “misspoke” at a birthday party. As a result he was promptly asked to resign and generally run out of town on a rail.
Let’s give Sotomayor the same benefit of the doubt the left gave Lott.
Goodbye, Sonia.
Seriously, you want to complain about the assumption (on this blog) that Democrats are always the bad guys. Well, Democrats are often bad guys as the Lott case illustrates. And your response in this case is essentially, don’t sink to their level.
So which is it. Are we trying not be like those creeps or are we wrong to think they’re creeps in the first place. I don’t see how you can argue both.
Do I think she really meant it the way it sounds? Yes. I read the whole speech. The whole speech, and particularly that portion, is her wrestling with the question of whether justice is really color blind. She notes Brown v. Board of Education as evidence in favor of that view, but then goes on to reject this and say that she’s less convinced than others about this point of view. She believes, speaking of justice generally, that the life experience of a wise Latina will probably trump that of a wise white guy (who presumably has lived a cushy life because he’s white).
Remember, she’s saying this to LaRaza, i.e. The Race. Do you really believe she meant to suggest no cultural superiority in front of this group?
Really?
May 30, 2009 @ 11:39 amI’m unsure that I’m the one who wants it both ways.
You think that what happened to Trent Lott was bad, and that therefore doing the same thing to Sonia Sotomayor is okay. And, on top of that, the Democrats get painted as the bad guys because of things like Trent Lott, but you still get to be the good guys by returning the favor.
Huh?
I personally don’t think there is the “good team” and the “bad team.” I think both sides have a fair share of creeps. And both have their fair share of good and decent people.
And as long as the GOP is willing to seriously consider Sarah Palin fit for national office, the GOP will continue to lose elections. (That’s neither here nor there, but I am amused at the ongoing self-destruction of the GOP).
And you’re welcome to think of La Raza as a racist organization, but I would kindly disagree. I don’t know how to combat that.
Other than to say it’s the height of uncharitable reading to let your final point be, “well, hey, she was talking to a bunch of racists, so she must be on too!”
Classy.
May 30, 2009 @ 11:54 amThis La Raza spewing, Sotomayor broad is about as qualified to be a Supreme Court justice as Hitler was in teaching Hebrew school. End of story. She’ll get in though and then we’ll have to deal with more dopey legal opinions from the mental midgets on the left. Let’s just hope that when she’s emoting her opinions as law that it doesn’t come during a “heavy flow”.
May 30, 2009 @ 12:51 pmMG,
Go back and read what I said about her speech, I think I was pretty balanced:
I went on to say that she seems to be a moral relativist and that:
Where you got the “Republicans good, Democrats bad” out of that I don’t know.
And speaking of that, where have you been the last six years while your side of the aisle was tearing into George Bush with every imaginable smear including plays and books about assassination, comparisons to Hitler, calling him a fascist daily on television, etc? For that matter, where are you on record saying Trent Lott was not a racist before today?
Does your interest in fairness only kick in when it’s convenient for your side of the debate? Please show me an example of your classiness in action before making judgments about me.
May 30, 2009 @ 12:54 pmJohn:
I didn’t mean to cause any offense. I’m not really a partisan person. I’ll agree with you that the initial post was quite balanced. As I’ve interacted with you and Morgen, though, it seems like the interest in charitable reading has come in fits and spurts.
I’ll also agree that the left went nuts against Bush. History will judge Bush as it sees fit. No need to pile on the man with insults and inapt comparisons.
My comment about the “good guys-bad guys” mentality I see was just a general observation. Maybe we just don’t agree about politics, but I don’t see the value in reporting every development through a lense of why Republicans are so awesome and the Democrats are so immoral.
I’m not a poly sci guy… I was always a philosophy guy. We get trained to see both sides to the issue. :-)
My best to you.
May 30, 2009 @ 2:49 pmMG,
Sorry to get so heated. It’s nothing personal. I just get tired of calls to “be reasonable” from Democrats who, it seems to me, haven’t done much to temper their side of the aisle.
I do try to be fair and so does Morgen. Yesterday the President said it was unfair to take Sonia Sotomayor’s words out of context. He’s talking about us, ultimately. But when Morgen posted that original video clip, he also gave a link to the full 40 minute video right there in the post so people could look at it for themselves. When we posted the excerpts above, we were concerned about fair use but tried to give as much context as possible. Are we still partisan. Yeah, guilty. But I think the line we’ve taken is more fair to the opposition that what a lot of Democrats (including the professionals who do this for a living) have done in the recent past.
But again, I apologize for getting on you about it.
May 30, 2009 @ 11:19 pm