John on September 25, 2009 at 10:02 am
I said I wasn’t going to do this. I changed my mind.
Sotomayor’s “wise Latina” reference was not limited to cases involving race. It was a broad statement meant to cover the law and society in general. The proof is right there in the speech. Here it is. Let’s look at it carefully.
Her statement of intent from her introduction:
I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.
Notice she does not specify its influence on one narrow area of law. This is a global influence she intends to discuss. The next paragraph begins “Who am I?” and judge Sotomayor spends the next half a dozen paragraphs discussing her biography. In the midst of that review she says this:
America has a deeply confused image of itself that is in perpetual tension. We are a 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. That tension between “the melting pot and the salad bowl” — a recently popular metaphor used to described New York’s diversity – is being hotly debated today in national discussions about affirmative action. 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 its differences. In this time of great debate we must remember that it is not political struggles that create a Latino or Latina identity. I became a Latina by the way I love and the way I live my life.
Again, we aren’t talking about a subset of law. This is about the tension between color-blindness and racial identity. She notes that this tension has been applied to the question of affirmative action, but that is not her starting point. Sotomayor says her own racial identity is about “the way I live my life.” Can’t get much broader than that.
Next she introduces some statistics. I’m condensing this:
As of September 1, 2001, the federal judiciary consisting of Supreme, Circuit and District Court Judges was about 22% women. In 1992, nearly ten years ago, when I was first appointed a District Court Judge, the percentage of women in the total federal judiciary was only 13%…No African-American, male or female, sits today on the Fourth or Federal circuits. And no Hispanics, male or female, sit on the Fourth, Sixth, Seventh, Eighth, District of Columbia or Federal Circuits. Sort of shocking, isn’t it? This is the year 2002.
Again, this isn’t about a specific area of law, it’s about how many minorities make it on the bench. Here we turn a corner:
This weekend’s conference, illustrated by its name, is bound to examine issues that I hope will identify the efforts and solutions that will assist our communities. The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss with you what it all will mean to have more women and people of color on the bench…What do the history and statistics mean? In her speech, Judge Cederbaum expressed her belief that the number of women and by direct inference people of color on the bench, was still statistically insignificant and that therefore we could not draw valid scientific conclusions from the acts of so few people over such a short period of time. Yet, we do have women and people of color in more significant numbers on the bench and no one can or should ignore pondering what that will mean or not mean in the development of the law.
Get that? Her speech is not about how minority judges will affect racial discrimination cases, it’s about how they will affect the “development of the law” in the broadest possible sense.
Now Judge Cedarbaum expresses concern with any analysis of women and presumably again people of color on the bench, which begins and presumably ends with the conclusion that women or minorities are different from men generally. She sees danger in presuming that judging should be gender or anything else based…While recognizing the potential effect of individual experiences on perception, Judge 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 the reason of law.
This is not a narrow range of issues. It’s the law en toto. Here is Sotomayor’s response:
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. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.
Far from narrowing the scope of her statements, Sotomayor has just widened them to include not just the law but society. From a leading question about the role of judges to an affirmative statement about it in the next paragraph:
[B}ecause I accept the proposition that, as Judge Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states "there is no objective stance but only a series of perspectives -- no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions.
Notice again that this does not say "decisions on matters of race." It says "decisions." Continuing with the very next sentence:
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. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.
Not the process of judging racial cases. The process of judging. Period.
Continuing with the next sentence, Sotomayor offers two related examples:
The Minnesota Supreme Court has given an example of this. As reported by Judge Patricia Wald formerly of the D.C. Circuit Court, three women on the Minnesota Court with two men dissenting agreed to grant a protective order against a father's visitation rights when the father abused his child. The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases. As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging.
Her examples include sex discrimination cases, but she also notes the affect women have on search and seizure cases. Her conclusion is that minorities will have an effect on "the law and on judging." This is not limited in scope. It is open-ended.
This next paragraph is the one that seems to be causing the confusion:
In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
Judge Cedarbaum argued that these cases are examples of judges transcending race. Sotomayor sidesteps the point and instead calls attention to the minority lawyers who helped change the law in these areas. In short, racial identity was still the key to changing the law.
Now we get to the paragraph heard round the world:
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.
Having read all that comes before, it's completely absurd to claim that the word "judging" here is limited to race and sex discrimination cases. It's not. Sotomayor has already said previously that gender and race will make a difference in "the process of judging" and in "the law and judging." This is the same broad statement being repeated a third time. Continuing:
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.
Justice O'Connor's statement is as broad as the horizon. She was not discussing a narrow area of law. She is talking about all cases. Indeed, this is about the definition of wisdom itself. Continuing:
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.
Following O'Connor's lead, we're still talking about the universal definition of wise, not about racial preferences or gender bias. Far from being narrowly focused, this paragraph has the broadest scope of any in the entire speech.
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.
On what type of case? The answer, for those who are honest about what Sotomayor has written, can only be for all cases. For the law and society. For the process of judging itself. Next paragraph:
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.
Sotomayor is not denying that people can transcend race and gender in cases that involve those issues. She's also not limiting herself to these areas, it just happens that these are notable historical examples. If there is any doubt this is so, the next paragraph makes clear:
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.
This is the wide open horizon. Sotomayor specifically includes "areas with which I am unfamiliar." What is affected is not her judging on race and sex based cases, but her judging. All of it.
Her penultimate paragraph concludes:
We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, [La Raza] 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.
Not the differences in race based cases. Not the difference in gender based cases. The difference. The difference to “the law and society” as Sotomayor said earlier.
Anyone who claims Sotomayor’s statement was narrowly focused on racial discrimination cases is simply wrong on the facts. This is not open to interpretation. It is clear what she meant. What a shame that doesn’t seem to matter.
I suppose, in an odd way, it does prove Sotomayor’s point that “to understand takes time and effort.” Most people can’t be bothered. They would rather have someone tell them what it says and then tell them what it means. I’m not one of those people. If you stuck with this long post on this long-dead issue, neither are you.
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