Following on Barbin MD's post this morning, I want to address Judge Sotomayor's supposedly "racist" comments which appear to be becoming the early focal point of the confirmation battle.
This is the speech that Sotomayor gave in 2001 at Berkeley, California.
The "controversial" part is near the end. The below are the key paragraphs. Anyone who discusses her quote without including the surrounding paragraphs is misleading (whether intentionally or accidentaly) people as to what Sotomayor really said. The italicized sentence is the supposedly "controversial" one. The bolded caps words provide the obvious context of what kind of cases she was talking about. In this context her statement seems obviously right and uncontroversial.
So here is her speech:
"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."
Clearly, Judge Sotomayor is commenting on a Latina woman's ability to reach the right outcome in a sex or race discrimination case, not on cases generally. Even if the legal standard were clear in sex and race discrimination cases (which it is not), the application of that standard to the facts is always somewhat subjective, based on what conduct one finds to be offensive, hostile, sexual, racial, etc. As a current law clerk I can assure you that the divergence on discrimination cases between judges is MUCH greater than on say, a breach of contract or fraud case. In such circumstances, a judge's experience, identity, and perspective make a huge difference.
As Chris Bowers aptly put it, if we don't think that the personal and group experiences of our judges matter, than why aren't we developing robots to apply the law?
Now perhaps it might be argued that: "well Sotomayor isn't saying that a woman or a Latina's experience is just valuable, she is saying it is BETTER than a white male's." But that is not what she is saying at all. She is saying that in the context of a legal world where the vast majority of judges are (and have been) white men, the addition of a Latina woman will make sex and race discrimination decisions better. That would certainly NOT be the case if we had had only Latina women on the Court for the last 200 years, with the exception of two men and two whites (one of whom was super liberal and always sided with the extremist Latina women majority faction).
SO IF SOMEONE JUST DOESN'T GET IT, and still buys this right-wing talking point, here is my strategy:
Ask your (presumably) devout Christian friend what it would be like having 9 athiests on the Supreme Court and how that would affect the Court's rulings on religious expression; or, if rather, having a few religious persons on the Court might lead to better decisions? Or ask a NRA member whether having a gun owner on the Court would benefit its 2nd Amendment jurisprudence (assuming there is going to continue to be one). If they have any ounce of honesty, they will tell you it would make a positive difference. Ask a prosecutor whether a Supreme Court without any prosecutorial experience would reach equally good criminal law decisions? Ask a libertarian or republican whether a Supreme Court of Justices who rent would make equally good decisions in Takings Clause cases?
You get the picture. Personal and group experiences matter. That doesn't mean that any one experience is inherently right or better. But it is an argument for diversity and for the proposition that in a context where some experiences are dominant and others largely absent, the addition of that experience will lead to better results.