The chief blot on Sonia Sotomayor's otherwise stellar professional record is a comment she made deprecating the capabilities of any judge lacking a Y chromosome and Iberian ancestry.
"I would hope," she said in a 2001 lecture on law and multicultural diversity, "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."
The question for her supporters is: How do we spin that? It's not sufficient grounds to reject her nomination, given her excellent credentials. But it's still an embarrassment.
One possible way to handle it is a mea culpa by the nominee. She could say, "Let me explain what I meant to say," or "I used to believe that, but I now realize I was mistaken," or "Oh, man -- what was I thinking?" Any of those tactics would defuse the controversy and allow the debate to proceed to a topic more advantageous to her.
Maybe when she gets to her confirmation hearing, Sotomayor will disavow the remark. But her supporters are taking another tack. They say this criticism is unfair, because critics have taken the quotation out of context and grossly distorted her meaning.
Sotomayor, they point out, also said judges "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."
Her allies have a point. Anyone who reads the whole speech will indeed find that her comment wasn't as bad as it sounds. It was worse.
What is clear from the full text is that her claim to superior insight was not a casual aside or an exercise in devil's advocacy. On the contrary, it fit neatly into her overall argument, which was that the law can only benefit from the experiences and biases that female and minority judges bring with them.
She clearly thinks impartiality is overrated. "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," she declared, a bit dismissively. She doesn't seem to think it's terribly important to try to meet the aspiration.
That's apparent from the context. She said, "Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge (Miriam) Cedarbaum, our gender and national origins may and will make a difference in our judging."
In more succinct terms: Sotomayor does not mind, and may even prefer, that the outcomes of cases are affected by the gender and race of the judge (at least when the judge is not white and male).
Judge Cedarbaum, she noted, "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." Does Sotomayor share that noble sentiment? Not entirely.
"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" (my emphasis). Which comes alarmingly close to saying: It's impossible for female and minority judges to overcome their biases, and it would be a shame if they did.
Underlying all this is Sotomayor's suspicion that white male judges are bound to treat minorities and women unfairly. She pointed out that "wise men like (Justice) Oliver Wendell Holmes and Justice (Benjamin) 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."
Sotomayor didn't seem to notice the damage she had just done to her own argument. The Supreme Court that upheld that gender discrimination claim was composed of nine men -- just as the court that ordered an end to racial segregation in public schools was all-white.
The court that upheld affirmative action by public universities had only one black member. There were no women on the court that found constitutional protection for abortion rights.
Right or wrong, the justices in those cases clearly strove to put aside their narrow personal interests and uphold the fundamental principles of the Constitution as best they could. Most Americans, most lawyers and most judges, I would guess, believe that's exactly what judges should do. Why doesn't Sonia Sotomayor?
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