Of White Men And “Wise” Latinas

Posted by J. Alexander Mitchell on 05.29.2009

Fun fun fun with race and the Supreme Court...

"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."

If you have not already memorized this quote, you will do so in the near-future. This is because you are going to hear it again and again. This quote was brought to light a few weeks ago by the New York Times in reference to Judge Sonia Sotomayor, who at the time was merely a front-runner in the race to be President Obama's first Supreme Court pick. The quote was from a 2001 interview at Berkeley in response to the famous Sandra Day O'Connor quote "a wise old man and a wise old woman would reach the same conclusion when deciding case". Judge Sotomayor's quote is certainly very polarizing; as I have discovered in my short time writing for 411 Mania, any statement involving race on some level causes defenses to become raised and brings about strong emotion. It would appear, as well, that many conservative/Republican analysts and talking heads have already begun the campaign to try to vote her down due to this quote.

I would cite that this is folly. If Sonia Sotomayor is, indeed, not qualified for the position, a fair but intense set of confirmation hearings will reveal her lack of suitability. I think that inserting race into the discussion will only hurt those opposed to her confirmation, mostly because these assertions are not solid legs to stand on.

I'll begin with a recent quote by Rush Limbaugh in reference to the perception of the Republican party:

What's a Republican today? What does a Republican stand for? When you say "Republican," what does it mean? To a lot of people, it means racist, sexist, bigot, homophobe because Republicans have not fought back on that and have accepted the premise, and that's why because they think they're viewed as racist, sexist, bigot, homophobes they've gotta not offend anybody so as to prove that a lie isn't true.

I happen to agree with Mr. Limbaugh on this subject; I think the Republican party has a perception problem.
This problem causes things like accidentally calling her "Maria" instead of Sonia flare even hotter than normal. Where Mr. Limbaugh and I disagree is with the proper way to handle the problem. He, as well as other prominent analysts such as Glenn Beck, Lou Dobbs, and Ann Coulter, have all begun the rallying cry of Evil Racist Sonia Sotomayor. Newt Gingrich has even called for her nomination to be withdrawn. There is a commonality to all of the names I have just listed, however – none of them hold a public office. If someone in a public office makes that sort of statement, and are later proven wrong, then there is a negative repercussion. A talking head doesn't have to worry about that; yes, that is one of the reasons why they make great attack dogs, but there are negatives that go along with this. The reason why those that would receive negative repercussions for misstatements are currently fairly quiet is because they don't really want to explore that statement beyond the surface, as it will just make them look bad… and a party with a perception problem does not want to look bad about race or gender.

On the surface, Judge Sotomayor's quote seems incredibly racist. I put it through my Quick-Racist-O-Meter (take out a key descriptive word, replace the word with Black, and gauge how it feels), and the alarms certainly went off: "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 Black male who hasn't lived that life." Indeed, it went off so much that I decided to read the full article (which I linked above). Here is an excerpt from this article, which further explores the quote above:

Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges' identities will affect legal outcomes.

"Whether born from experience or inherent physiological or cultural differences," she said, for jurists who are women and nonwhite, "our gender and national origins may and will make a difference in our judging."

Her remarks came in the context of reflecting her own life experiences as a Hispanic female judge and on how the increasing diversity on the federal bench "will have an effect on the development of the law and on judging."

In making her argument, Judge Sotomayor sounded many cautionary notes. She said there was no uniform perspective that all women or members of a minority group have, and emphasized that she was not talking about any individual case.

She also noted that the Supreme Court was uniformly white and male when it delivered historic rulings against racial and sexual discrimination. And she said she tried to question her own "opinions, sympathies and prejudices," and aspired to impartiality.

Still, Judge Sotomayor questioned whether achieving impartiality "is possible in all, or even, in most, cases." She added, "And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

She also approvingly quoted several law professors who said that "to judge is an exercise of power" and that "there is no objective stance but only a series of perspectives."

"Personal experiences affect the facts that judges choose to see," she said.

Charles J. Ogletree Jr., a Harvard law professor and an adviser to Mr. Obama, said Judge Sotomayor's remarks were appropriate. Professor Ogletree said it was "obvious that people's life experiences will inform their judgments in life as lawyers and judges" because law is more than "a technical exercise," citing Justice Oliver Wendell Holmes Jr.'s famous aphorism: "The life of the law has not been logic; it has been experience."

That last sentence was key for me. Being a judge is not the same as solving a Math problem. Whereas one obviously wants as much objectivity as possible, there is a level of subjectivity involved; otherwise, we'd have an entire court system that is repeatedly calculating three plus three and coming up with six.

What she is saying in that quote is not that Latina judges are better than White judges; she is saying that someone with experiences will come to different conclusions than someone that has less experience. I believe she is also saying that one's experiences and empathy make a difference in the judicial process. Two people can both be wise and, due to experience and empathy, come to different conclusions on the same legal issue. This is not an unfamiliar argument – in fact, a former Supreme Court nominee said something similar about bringing his experience to the table:

And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, "But for the grace of God there go I."

This quote comes from Supreme Court Justice Clarence Thomas during his confirmation hearings. To take it a step further, former Bush administration lawyer John Yoo – who has gone on record as denouncing President Obama for choosing a candidate based partially on that candidate's empathy - said of Thomas:

"Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support."

This sounds… eerily familiar.

This is where I believe that the path of "Sotomayor is racist" is problematic. Given the perception problems I noted earlier, things would have to be totally black and white (no pun intended) to risk moving in this direction. Any hypocrisy in the charges would backfire horribly on a party that will do well to not alienate voting blocks unnecessarily. Any charges like these must be 100% correct with no ambiguity. I believe that Judge Sotomayor could have, to say the least, worded what she said differently; I question whether a "wise" Latina would have chosen that phrasing. More specifically, the difference between her statements and Justice Thomas' statements is that she chose to be comparative whereas he simply stated that his experiences as a minority would help the court. This does not change the fact that, once you bring context into her quote, things become more muddled, and that will not be good for those that object to Judge Sotomayor's confirmation.

I do not know whether or not Judge Sotomayor would do well as a Supreme Court judge. As such, I am not advocating her confirmation. What I am advocating is a focus on the issues and a thorough but fair confirmation hearing. There are plenty of things one could argue against her. For example, some abortion rights groups are already concerned about her nomination. Her stance on gun control and state's rights in regards to the second amendment will definitely come up. Senator Pat Roberts has gone on record as saying he will vote against her confirmation, citing concerns he had when he voted against her as an appellate judge in 1998 and statements she has made since then about the appellate court. I especially like Senator Orrin Hatch's statements on this confirmation: "I think we have to be fair. I think we have to do what is normally done, and that is scrutinize the record, look at the opinions, the unwritten opinions, the articles, the speeches, the various comments that have been made and so forth, and do it fairly."

I'm surprised to say I agree with Senator Hatch, but I do. As with anyone that is unjustly up for a position, due to race, nepotism, or whatever reason – attack the qualifications, not the person. However, to begin with the race issue is unwise; the counters to that argument are being put in place already. To go down that road will only end up further diminishing the image of the loyal opposition.

UPDATE: Commentator GaryML chided me on quoting the original New York Times article and not the full text. I felt that the original article was suitable for casting doubt on the "racism" of the statement, but I think he is correct that further analysis of the original quote is needed. As such, here is the full quote from media matters.

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.

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.