Supreme Court nominee Sonia Sotomayor
I know, I know… this is going to look like a complete 180 on my part considering what I’ve written about her so far, but I think that maybe we – and by “we”, I mean those of us who have been slaughtering her based on the few negative quotes and video clips that have been making the rounds – need to do a little more checking into the actual facts of Supreme Court nominee Sonia Sotomayor’s prior judicial history and out-of-context quotes before jumping to any further conclusions about her fitness to serve.
As people close to me can attest, I have been known to make a pretty big deal about the importance of first-hand knowledge of a given situation before forming an opinion or passing judgement on it. Over the past couple of weeks however, with work and family things taking center stage in my life, I’ve had to rely on second and third-hand accounts of current events – including the whole Sotomayor thing – because I just have not had the time to do the in-depth investigative work required to form what I consider to be a fully-informed opinion on my own. Big mistake, because now I have to back-pedal, something I’m not all that crazy about doing.
Earlier this evening, I was reading a short article over at CNN about how Newt Gingrich called Sotomayor ‘racist’ and demanded that she withdraw her nomination. What Gingrich was referencing was the following quote from Sotomayor, taken from 2001 speech she gave to a Hispanic group:
“…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.”
Wow. A pretty damning statement sitting out there on its own. Based on that alone, I would agree – as I did – that Sotomayor was indeed an anti-white racist and should be immediately dropped from further consideration.
Unfortunately, the thing that has been missing everywhere I’ve seen that quote is context. Nobody, at least not any of the sources I normally turn to for information, has given any indication of how that quote fit within her speech contextually.
Why is that important? Because here’s what she said, in context:
That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because 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. 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. 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.
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.
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.
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.
You know, I get what she’s saying here – she’s talking about how we each bring our experiences to the table; although impartiality is the ultimate goal, the inescapable fact is that our life experiences can and do affect our decision making process, and therefore her experiences as a Latina woman may give her greater insight in certain cases – presumably those involving minorities and women – than that of her white male counterparts.
If my interpretation is accurate to her intent, then I don’t think that was a racist statement at all, and I really don’t have a problem with it.
It’s also worth noting that towards the end of her speech, she said the following:
I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. 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.
You can read the entire text of Sotomayor’s speech at the New York Times
Now, with that said, there’s still plenty about her that will need to be fully explored. For example, there’s a difference between a decision making process influenced at some level by ones life experiences (which, as I opined earlier, is inescapable) and outright empathy – or perhaps even sympathy – , and we need to know where her line is. But, that is what the confirmation hearings are for, and I truly hope the republicans on the senate judiciary committee manage to find one complete set of balls between them to give her a proper in-depth questioning. However, we do, for the benefit of all involved, need to hear her out.
As for Newt….damn, I really like the guy, but attacks like this, besides making us all look bad, will only help drive people away from the republican party – especially conservative or fence-sitting Hispanics whose votes we need – and lessen our chances of taking the house back in 2010. We have enough problems as it is, no need to further attempt to sink our own boat.