Is Sonia Sotomayor a “racist”? Most would agree that the answer depends on how we define the term “racist”. But how many Americans are comfortable with a Supreme Court justice who publicly states that the answer depends on the race or sex of the listener? This question is now before the United States Senate which will soon to take up the nomination of Ms. Sotomayor.
U of Maryland law prof and CNN commentator Sherrilyn Ifill wants us to believe Sotomayor is not a racist. More on Ifill later. For now, let’s put some of Sotomayor’s spots on the screen and see what pattern emerges.
As pretty much everyone now knows, Sotomayor’s willingness and ability to judge without regard to the race or sex of Americans in her courtroom has been questioned over words she spoke at a 2001 Boalt Hall (Berkeley) Law School event:
“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.”
These words — admittedly remarkable on their own — have been shopped around by the mainstream press as if they were all she spoke. In fact, she had far more to say in that speech that Americans ought to hear before deciding to confirm her nomination or not.
Below are more complete excerpts from Ms. Sotomayor’s speech (emphasis added by me). Normally, I would break up the train of thought with my own observations. In this case, I think it’s important to let Sotomayor’s words sink in more naturally:
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. 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. . .
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. . .
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 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. . . I . . . 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.
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 that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, 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.
The Berkeley speech contains so much to consider, it’s hard to know where to start. But I’ve given plenty of hints with the red highlighting. Fascinating, isn’t it, that Sotomayor went through that whole speech without acknowledging that two older white guys (George HW Bush and Bill Clinton) nominated her to the federal bench and scores of them voted to confirm her?
If I could talk with Sotomayor, I’d ask her what she means by “the richness of her experiences” and “that life”. Is she saying that there is a special, superior category of life lived only by “Latinas”?
More importantly, when is it OK for a judge to knowingly employ her personal “opinions, sympathies, and prejudices” in deciding cases that impact the lives of people who rely on America’s promise of color-blind justice? Does Sonia Sotomayor really understand what it means to be an American?
Perhaps the last sentence says the most. In 2001, Sonia Sotomayor was hot to “figure out” with “all of us in this room” how to legally pick and choose “stastically,” to give some groups of Americans more opportunity than others because of their sex and skin color, nothing else. If Sotomayor is confirmed, expect racial quotas to make a come back with the help of a “wise Latina”.
Sotomayor’s Berkeley speech can be read in its entirety at the NYT.
